What isn't protected by the First Amendment

[Mr. X]

Advertising. Commercial speech has been deemed to be outside the scope of the First Amendment and that view has been repeatedly upheld by the Supreme Court of the United States.

Now a valid question is "Why is it outside of the scope of the First Amendment"? This isn't a new phenomenon and is in my view a travesty that has been continued because of precedence.

This is interesting because the Founding Fathers of the U.S. were intimately connected with commercial speech and the idea that it would be outside of protection is, in my opinion, something they would have disagreed with. Benjamin Franklin made his money off of advertising and George Washington advertised lands in the west (west of what was known at the time) for sale.

Outside of a strictly Libertarian or utopian view which this runs counter to, this is detrimental to the people. Obviously everyone is tired of what they see as advertising encroachment: ads over urinals, ads within packaging, ads at the gas pump etc. However, commercial speech provides a valuable source of information to the consumer by providing them with information as to what is available, where it can be purchased and what it offers. Arguably advertising serves the most useful function by providing people with information about where to allocate their scarce resource of money.

This argument always comes to a head with the so-called vices: alcohol and tobacco. Miller Time and Joe Camel. Admittedly there are other social issues that enter the fray such as condom advertising which Justice Rehnquist wrote a scathing critique of in a majority opinion upholding restrictions on commercial speech. But the tried and true issues are always alcohol and tobacco.

I'm no teetotaler nor completely without vice. I enjoy a good whisky and cigar and when both are on, the experience is sublime. However, I don't smoke cigarettes and find the smell of them rather obnoxious, nor am I a barfly so that's not my dog in this fight. I'm just someone who finds the First Amendment to be the best compilation of 45 words in human history.

Obviously no thinking person or society wants kids smoking tobacco. However in the U.S. there used to be notations on the packs of cigarettes that denoted how much tar and nicotine was in the cigarettes. This was banned by congress out of fear that some consumers would be misled into believing that they were smoking a safer cigarette. As a result the arms race amongst tobacco companies to create the cigarette lowest in tar and nicotine was abandoned. The restriction on speech threw the tobacco companies a bone and ultimately hurt the consumer. Tobacco companies no longer needed to create low tar and nicotine cigarettes because the market for it was effectively wiped out by the U.S. government. Any of you who smoke in the U.S. would be hard pressed to find the tar and nicotine of your preferred brand.

A brothel operating legally in a county in Nevada is prohibited from advertising its services in a county that prohibits prostitution, regardless of the fact that they are in compliance of the law where they are located. People can pour a beer in a television commercial, but they can't drink it. And tobacco ads are relegated to the nether regions of any modern advertising.

Personally I believe that this does more harm to the consumer than help. I also believe that this is counter to the whole point of the First Amendment which is to ensure that there is a vibrant marketplace of ideas because of the self-righting principle of truth.

I admit I'm mainly just posting this because most people aren't aware of this limitation that, in my opinion, borders on ludicrous. However I did smoke a Bolivar tonight with a dram of Caol Ila so my judgment might be skewed.

 

[rathi]

I'd agree that preventing cigarette companies from putting how much nicotine and tar contained in the cigarettes on the box was stupid. And I frankly don't care whether or not people drink booze or not in TV commercials. I wouldn't care all that much in the government lifted restrictions on tobacco. However, commercial speech should not be protected. Human beings can lie all they like in real life, but in advertising you cannot.

 

[Patrickt]

Since the day the first amendment was penned the government and its supporters have been looking for ways to undermine it.

 

[Mr. X]

Since the day the first amendment was penned the government and its supporters have been looking for ways to undermine it.

The first restriction on the First Amendment regarding commercial speech didn't occur until the early 20th century in the Abrams case. That's where the famous Holmes quote about falsely shouting fire in a crowded theatre comes from.

As to the first reply, I disagree that commercial speech should be deemed differently than political speech. Politics will affect a man's business just as his business affects his politics.

I'll paraphrase an example I don't have on hand. Here are three ads for the same business.

1) Buy Joe's Ice Cream.

2) Buy Joe's Ice Cream because I only use organic cream from local farmers.

3) Buy Joe's Ice Cream because we use fresh cream and oppose bovine growth hormones.

Tell me which of these is purely commercial or purely political speech. I believe you can't separate commercial speech from speech with any kind of credibility, and as I said before to do so is to the detriment of the consumer.

 

[rathi]

Tell me which of these is purely commercial or purely political speech.

1) Buy Joe's Ice Cream.

Commercial speech.

2) Buy Joe's Ice Cream because I only use organic cream from local farmers.

Commercial speech.

3) Buy Joe's Ice Cream because we use fresh cream and oppose bovine growth hormones.

Commercial speech. The political message at the end is irrelevant.

Businesses are not people and do not get the protection of the 1st. You have the right to free speech as a person, not a company. Advertisements must be true. Statements to the shareholders must be true. Lying about competitors products is not allowed. Consumers can only make good choices if they have sources of trusted information. Capitalism needs truth to function properly.

 

[Mr. X]

Commercial speech.



Commercial speech.



Commercial speech. The political message at the end is irrelevant.

Businesses are not people and do not get the protection of the 1st. You have the right to free speech as a person, not a company. Advertisements must be true. Statements to the shareholders must be true. Lying about competitors products is not allowed. Consumers can only make good choices if they have sources of trusted information. Capitalism needs truth to function properly.

Let's focus specifically on the First Amendment and assume this is Joe selling his ice cream, not some big business. Should he not be allowed to make a political statement in his advertising? Should any political statement he makes not enjoy the same protection as it would if it were not in an advertisement?

Look at Ben and Jerry's ice cream. Their advertisements and the packaging of their ice cream is chock full of statements indicating a political stance on environmental, economic and health issues. Many people buy Ben and Jerry's because they support these stances taken. You really can not separate the political from the personal from the commercial.

You are also operating under the assumption that these restrictions on free speech in the commercial arena somehow are what guarantees truth in advertising. This is quite far from the reality and these restrictions, as I stated early in regard to tobacco, often hide the truth from the consumer.

Truth works under the self-righting principle. Truth needs no champion because it will always rise up. It seems that you have a negative view of advertising, which is very common, but nothing will kill a bad product faster than good advertising. More information available to the consumer is a good thing. Restricting information available to the consumer is what hurts the consumer. Capitalism needs unfettered information to function properly, the truth will come out.

 

[Mr. X]

The first restriction on the First Amendment regarding commercial speech didn't occur until the early 20th century in the Abrams case. That's where the famous Holmes quote about falsely shouting fire in a crowded theatre comes from.

I just noticed I wrote that incorrectly. The first restriction to the First Amendment regarding any form of speech was what I meant to say. The restrictions to commercial speech didn't start occurring until about the middle of the 20th century.

Prior to the Abrams case, the First Amendment was never really an issue.

 

[rathi]

I just noticed I wrote that incorrectly. The first restriction to the First Amendment regarding any form of speech was what I meant to say. The restrictions to commercial speech didn't start occurring until about the middle of the 20th century.

Do you really want to go back to the days of Dr. Quackalots "cure all elixir"?

Look at Ben and Jerry's ice cream. Their advertisements and the packaging of their ice cream is chock full of statements indicating a political stance on environmental, economic and health issues. Many people buy Ben and Jerry's because they support these stances taken. You really can not separate the political from the personal from the commercial.

That correct. However, Ben and Jerry's didn't falsely advertise either.

Let's focus specifically on the First Amendment and assume this is Joe selling his ice cream, not some big business. Should he not be allowed to make a political statement in his advertising? Should any political statement he makes not enjoy the same protection as it would if it were not in an advertisement?

Nothing wrong with making political statements in advertising. However, any advertisement, regardless of political content, is required to maintain the legal standards required for advertising.

You are also operating under the assumption that these restrictions on free speech in the commercial arena somehow are what guarantees truth in advertising. This is quite far from the reality and these restrictions, as I stated early in regard to tobacco, often hide the truth from the consumer.

Tobacco regulations have nothing to do with free speech. Tobacco has serious health issues, and the government sometimes responds in an stupid fashion to it. However, tobacco regulations do not represent the general purpose of commercial speech.

Truth works under the self-righting principle. Truth needs no champion because it will always rise up.

No offense, but that is insanely naive. Thats like saying we don't need police because people are all good at heart.

It seems that you have a negative view of advertising, which is very common, but nothing will kill a bad product faster than good advertising. More information available to the consumer is a good thing. Restricting information available to the consumer is what hurts the consumer. Capitalism needs unfettered information to function properly, the truth will come out.

I have no problem with advertising. I've even worked in advertising. I do have a problem with advertising that is deceptive and contain falsehoods. I agree that consumers need information, but that information needs to be the truth.

 

[Cephus]

Let's focus specifically on the First Amendment and assume this is Joe selling his ice cream, not some big business.

That's a faulty assumption right off the bat. If Joe is selling something, then Joe is a business. Anyone who sells anything for any reason is a business, even if they don't require a business license or fall under sales tax guidelines. Hence, now that Joe is a business, Joe's 1st amendment rights are limited when he is speaking for his business.

 

[rivrrat]

Yeah, I don't get the whole tobacco and alcohol advertising BS. Never have.

 

[Mr. X]

Wait a minute. I see a lot of discussions that have nothing to do with the First Amendment. You are confusing the FTC regulations with restrictions on speech. These are two completely different things. I really can't stress that point enough.

FTC regulations are necessary the same way that FDA regulations are necessary. They both protect what the public consumes. Snake oil elixirs weren't put out of business by restrictions on the First Amendment, they were put out of business because they lied.

Restrictions on commercial speech didn't start until, I believe, 1947 (I can look up the specific case date later).

Now you may say that if Joe is a business he shouldn't have the same freedom of speech as he would if he wasn't in business, but I find that hard to understand. Why should his rights be limited if he's turning a buck? The SCOTUS has upheld that spending money is a form of free speech so why does the making of money force the speech to fall outside of that?

I'd be willing to bet that your political beliefs influence your spending habits, just as your spending habits influence your political beliefs. Why is Free Trade coffee and produce sold and marketed as such. Why would people pay extra to buy Free Trade if it wasn't because they believed in the cause. How do you separate the political from the produce?

And my comment about the self righting principle of truth was a condensed paraphrase of Milton whose philosophies were utilized by the Founding Fathers when drafting the Constitution and the Bill of Rights. You may disagree with the philosophy, but it certainly isn't naive. When information is freely distributed and not withheld, the truth comes out.

I hate debating with quotes because it's lazy, but these two I enjoy and I don't mean for them to be my argument.

"Advertisements... contain the only truths to be relied on in a newspaper." —Thomas Jefferson

"Regardless of the moral issue, dishonesty in advertising has proved very unprofitable." — Leo Burnett

For those who haven't worked in advertising, Leo Burnett was one of the pioneers of modern advertising and an immensely successful businessman who left one hell of a legacy.

 

[rathi]

Uh, I am not sure we are communicating very well here. My arguments is that advertisements have to follow rules that the heckler on the street corner doesn't. Beyond that, I have no problem with Corporate figures saying whatever they please.

 

[RightinNYC]

Why is advertising not protected by the First Amendment?

http://en.wikipedia.org/wiki/Commerce_clause
http://en.wikipedia.org/wiki/Rational_basis_review

 

[Mr. X]

Uh, I am not sure we are communicating very well here. My arguments is that advertisements have to follow rules that the heckler on the street corner doesn't. Beyond that, I have no problem with Corporate figures saying whatever they please.

Corporate figures can say whatever they please. Advertising faces restrictions on speech. These restrictions are arbitrary and are detrimental to the consumers.

A brothel legally operating in a county in Nevada where it is legal is not allowed to advertise it's services in a neighboring county where it's illegal. While casinos can advertise anywhere, including states where it's illegal to gamble. Tobacco companies, hardly the paragon of an honest business, are forbidden to print the truth about what their cigarettes contain.

Prior to tobacco companies being prohibited from advertising on television, there were numerous anti-smoking ads that were also aired. The smoking rate declined while these ads were running. When cigarette advertisements disappeared from television in the 70s, so did the anti-smoking advertisements. The result was the smoking rate started to increase again.

I really like the Truth anti-smoking advertising campaign and I am sure that it will help reduce smoking rates, especially among young people. To reduce the smoking rate this is more effective than banning tar and nicotine content advertising.

The solution isn't restricting information available to the consumer, it is allowing even more information to be given to the consumer. A well informed consumer will make the best choices.

And to RightatNYU, commercial speech is protected by the First Amendment, it just doesn't enjoy the same protections as non-commercial speech. A political party would not be forbidden from advertising in certain media, whereas commercial speech can be as one example. All of this was done under the guise of protecting the consumer. But preventing the consumer from having access to all of the information is never in the consumer's best interest.

 

[RightinNYC]

And to RightatNYU, commercial speech is protected by the First Amendment, it just doesn't enjoy the same protections as non-commercial speech. A political party would not be forbidden from advertising in certain media,

It wouldnt?

The BCRA curtailed so called "issue ads" by banning the use of corporate or union money to pay for broadcast advertising that identifies a federal candidate within 30 days of a primary or nominating convention, or 60 days of a general election.

whereas commercial speech can be as one example. All of this was done under the guise of protecting the consumer. But preventing the consumer from having access to all of the information is never in the consumer's best interest.

It's not a question of preventing them from having access to all information, its a question of whether that information is true or not. When Congress passed the FTC act, it allowed the exec to regulate advertising, just like states can act to ensure consumer protection.

 

[rathi]

Mr x, all of the things your cite are "decency" regulations. They are much the same as ads that prevent you from advertising pornography or opening a sex shop along a main thoroughfare. It has nothing to do with commercial regulation and everything to do with politicians trying to maintain "moral standards." I'd agree that many of them are stupid and should be removed, but they have nothing to do with commerce as a whole.

 

[Mr. X]

It's not a question of preventing them from having access to all information, its a question of whether that information is true or not. When Congress passed the FTC act, it allowed the exec to regulate advertising, just like states can act to ensure consumer protection.

The FTC governs whether what is said in advertising is true or not. That is absolutely not the question here.

I have nothing against the FTC. Like the FDA it protects what consumers consume. I also support restrictions on the First Amendment because I believe, in the words of Justice Jackson, that the Constitution is not a suicide pact. What I oppose is an artificial division between speech that is deemed commercial vs. speech that is deemed non-commercial.

Mr x, all of the things your cite are "decency" regulations. They are much the same as ads that prevent you from advertising pornography or opening a sex shop along a main thoroughfare. It has nothing to do with commercial regulation and everything to do with politicians trying to maintain "moral standards." I'd agree that many of them are stupid and should be removed, but they have nothing to do with commerce as a whole.

I don't think this has anything to do with decency regulations either. I won't pretend to be a lawyer, but wouldn't any "decency" regulation be based on obscenity? And if obscenity is legally defined as:
(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

Then how does the prohibition of tobacco advertising on television fall into this? And if I misinterpreted the decency regulations you are referring to, then please point me towards the legal basis of these. As I said I'm not a lawyer, but I love debating the First Amendment.

Presumably alcohol, viagra, and condom advertising are not marketed at children yet they enjoy the liberty of being able to advertise on television. Why is tobacco verboten? Why is gambling permitted to be advertised where it is illegal and brothels not? Why on earth are tobacco companies prohibited from printing the truth about what is in their product?

 

[RightinNYC]

The FTC governs whether what is said in advertising is true or not. That is absolutely not the question here.

I have nothing against the FTC. Like the FDA it protects what consumers consume. I also support restrictions on the First Amendment because I believe, in the words of Justice Jackson, that the Constitution is not a suicide pact. What I oppose is an artificial division between speech that is deemed commercial vs. speech that is deemed non-commercial.

I don't think this has anything to do with decency regulations either. I won't pretend to be a lawyer, but wouldn't any "decency" regulation be based on obscenity? And if obscenity is legally defined as:
(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

Then how does the prohibition of tobacco advertising on television fall into this? And if I misinterpreted the decency regulations you are referring to, then please point me towards the legal basis of these. As I said I'm not a lawyer, but I love debating the First Amendment.

Presumably alcohol, viagra, and condom advertising are not marketed at children yet they enjoy the liberty of being able to advertise on television. Why is tobacco verboten? Why is gambling permitted to be advertised where it is illegal and brothels not? Why on earth are tobacco companies prohibited from printing the truth about what is in their product?

Because the state has a compelling interest.

 

[Mr. X]

Because the state has a compelling interest.

Please explain to me the compelling interest that overrides the First Amendment considerations we give to non commercial speech. And if you'd like to defend it, please tell me how those restrictions on the First Amendment benefit the public.

 

[RightinNYC]

Please explain to me the compelling interest that overrides the First Amendment considerations we give to non commercial speech. And if you'd like to defend it, please tell me how those restrictions on the First Amendment benefit the public.

Regulating commerce. It's not a controversial subject, I'm not sure why you're so hyped up by this.

 

[rathi]

Presumably alcohol, viagra, and condom advertising are not marketed at children yet they enjoy the liberty of being able to advertise on television. Why is tobacco verboten? Why is gambling permitted to be advertised where it is illegal and brothels not? Why on earth are tobacco companies prohibited from printing the truth about what is in their product?

The state feels that such products being promoted is against the common good and they have a "compelling interest" to prevent them from being advertised. I think that the state is wrong, but thats their rationale. Other "decency" standards on network TV from showing naked people, extreme violence or swearing.

 

[Mr. X]

Actually this is a fairly controversial topic. That's why these cases go to the Supreme Court and why the Court itself still struggles with it. This topic is a major focus in any First Amendment studies and with good reason. Why I'm hyped up about this is that I feel there is an artificial distinction that has been placed in the First Amendment by the Supreme Court.

Many people disagree with my position on this subject, indeed many Justices do, and that's fine. Fortunately I'm not alone in my position as there are other legal minds and constitutional poobahs that think this distinction is wrong as well. I just have yet to see what I think is a valid argument as to why commercial speech, in and of itself, should not be afforded the same protection as non-commercial speech.

The Supreme Court has come up with a set of guidelines that it currently uses in determining whether restricting commercial speech is constitutional or not. This is referred to as the Hudson doctrine and any restrictions must meet one of three criteria.

1. The regulated speech concerns an illegal activity,
2. The speech is misleading, or
3. The government's interest in restricting the speech is substantial, the regulation in question directly advances the government's interest, and the regulation is no more extensive than necessary to serve the government's interest.

Now, I argue that prohibiting tobacco companies from advertising on television or printing the truth about what their products contain doesn't seem to pass muster.

The compelling interest here is that smoking is bad for you, it harms the citizens that the government has an obligation to protect. On top of that it creates health care problems, litter, pollution and a lot of other nasty effects. But placing these prohibitions on that commercial speech may directly advance the government's interest because perhaps the lack of TV ads has kept someone, somewhere from smoking. The information about tar and nicotine levels, I would find hard to believe that accomplished anything beneficial, but I'll pretend it kept somebody from smoking as well.

Now both of these fail the ultimate test—they are more extensive than necessary to advance the government's interest. Anti-smoking ad campaigns are far more effective at getting someone to quit than is banning television ads.

I'm just using tobacco companies, because they are the worst. It's a deadly product and the one that is used to most effectively argue in favor of limiting commercial speech.

The Hudson doctrine is probably as well conceived as anything to determine the constitutionality of restrictions on commercial speech. I don't think I could write a set of rules that would be better. However I disagree that there is a separate kind of speech we can just label as commercial speech.

With this distinction between commercial vs. non-commercial speech where do you draw the line? If I say "Buy American" is that a political or commercial statement? What if GM uses it in an ad? If the governor of a state makes a speech touting his state's virtues for business and saying that businesses should relocate here, what kind of speech is this? After 9/11 when the president encouraged Americans to spend to help the economy, was that non-commercial or commercial? When the DNC or RNC advertises asking for contributions so they can advance this political agenda or that cause, how can you say that isn't political or isn't commercial?

I argue that there isn't an effective way to say that this speech is commercial while this other speech is non-commercial. In areas where the government has a compelling interest to protect the citizens, I feel they have overstepped and the restrictions on free speech are too much. There are other ways to protect the citizens without restricting speech.