Selling Words: Free Speech in a Commercial Culture 9780814784617

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Selling Word s

Critical America General Editors: RICHARD DELGADO and JEAN STEFANCIC White by Law: The Legal Constructions of Race Ian R Haney Lopez Cultivating Intelligence: Power, Law, and the Politics of Teaching A conversation between Louise Harmon an d Deborah W. Post Privilege Revealed: How Invisible Preference Undermines America Stephanie M. Wildman with contributions by Margalynne Armstrong, Adrienne D. Davis, and Trina Grillo Does the Law Morally Bind the Poor? or What Good's the Constitution When You Can't Afford a Loaf of Bread? R. George Wright Hybrid: Bisexuals, Multiracials, and Other Misfits under American Law Ruth Colker Critical Race Feminism: A Reader Edited by Adrien Katherine Wing Immigrants Out! The New Nativism and the Anti-Immigrant Impulse in the United States Edited by Juan E Perea

Taxing America Edited by Karen B. Brown and Mary Louise Fellows Notes of a Racial Caste Baby: Color Blindness and the End of Affirmative Action Bryan K. Fair Please Don't Wish Me a Merry Christmas: A Critical History of the Separation of Church and State Stephen M. Feldman To Be an American: Cultural Pluralism and the Rhetoric of Assimilation Bill Ong Hing Negrophobia and Reasonable Racism: The Hidden Costs of Being Black in America Jody David Armour Black and Brown in America: The Case for Cooperation Bill Piatt Black Rage Confronts the Law Paul Harris Selling Words: Free Speech in a Commercial Culture R. George Wright

From Adbusters magazine, Vancouver, Canada

Selling Word s Free Speec h i n a Commercial Cultur e

R. G e o r g e W r i g h t

II

N E W YOR K UNIVERSIT Y PRES S N e w Yor k an d Londo n

NEW YORK UNIVERSITY PRESS New York and Londo n Copyright © 1997 New York University All rights reserved Library of Congress Cataloging-in-Publication Dat a Wright, R. George. Selling words : free speech in a commercial culture / R. George Wright. p. cm . — (Critica l America) Includes bibliographical references an d index. ISBN 0-8147-9315-0 (acid-fre e paper ) 1. Advertising laws—United States . 2 . Freedom of speech—Unite d States. 3 . Popular culture—United States . I . Title. II . Series. KF1614.Z9W75 199 7 342.73*0853—dc21 97-489 9 CIP New York University Press books are printed on acid-free paper , and their binding materials are chosen for strength and durability . Manufactured i n the United States of America 10 9 8 7 6 5 4 32 1

For Jim, Nancy, and Andrew George

c o n t e n t s

Acknowledgments x

i

Introduction 1 1 Commercia 2 Tobacc 3 Th 4 Wha 5 Ho 6 Th

l Speec h in Contex t 1 o and Patronizin g Speec h 7

e Commercial Colonizatio n o f the Internet 10 t Are Controversial Ads For? 13 w Do Ads Describe Us? 1

2 8 8 5 57

e Current Statu s of Commercial Cultur e and Som e Political Responses 18 Conclusion: Commercializatio n an d th e Status o f th e Poo r 19

9

Notes 20

5

Bibliography 20

9

Index 24

3

IX

0

acknowledgments

The author's thanks g o to Michelle Curci, Richard Delgado , Michael Froomkin, John Garvey , Lori Hackleman, Gina Hunter, Andy Klein, Ed Martin , Jud y McAlister , Richar d Moon , Michae l Perry , Nik o Pfund, Richar d Pollay , Roger Shiner , Jean Stefancic , Mark Tushnet , and Mary Wright. Acknowledgment i s also hereby gratefully extende d t o the Denve r University Law Review for permissio n t o reprint a revised version o f R. George Wright, "Freedom an d Culture : Why We Should No t Bu y Commercial Speech, " Denver University Law Review 7 2 (1994): 137, as well as to th e Medi a Foundation , publisher s o f Adbusters maga zine, for th e cove r ar t an d frontispiece . Th e chapte r epigram s ar e from Sinclai r Lewis's Babbitt. xi

. . . th e Babbit t whos e go d wa s moder n appliances was not pleased.

i n t r o d u c t i o n

It was observed some years ago that the bright lights of Times Square must be a magnificent spectacl e to those unable to read. Indeed, ou r commercial cultur e seems a marvel to us, to the extent we lose sight of the possibilities o f human development , well-being, and genuin e freedom. Our surve y begins with a brief excursio n throug h th e perpetuall y cash-strapped Arrid-Mentos Junior High School. Arrid-Mentos, for merly named fo r Presiden t Frankli n Delan o Roosevelt, is located o n a small section o f Minerva Street now officially redesignate d a s Ford Bronco Drive. As you now may suspect, the school has entered into a I

2 • Introductio n

series o f Faustia n bargain s i n retur n fo r modest , bu t desperatel y needed, cash payments. To thi s end , th e school' s mornin g homeroo m announcement s over the PA system ar e sponsored, appropriately, by Vivarin. And i n an attempt t o reduce the number o f untoward incident s i n the hallways, Blockbuster Video has installed severa l continuously runnin g TV monitors at selected points. Most of the wall space is occupied by lower-tech, lower-budget ads , currently in various stage s of deface ment. Hallwa y audio speaker s provide a democratically negotiate d mix of rock, country, and urba n contemporar y music , intersperse d with commercial s fo r product s o f special interest. For example , the French classe s are sponsored b y Yves St. Laurent, with a variety o f products advertise d s o as to avoid monotony an d maintai n interest . Today's American histor y lesson consist s of a classroom video plus a not unmanageabl y difficult , self-scorin g qui z sponsored b y Hershe y Not surprisingly , the video features th e intriguing history of choco late manufacturing i n the United States. The student s hav e their lunc h i n the foo d kios k area , next to th e ATM machines an d the newly expanded vending machine area . The accoutrements—from tray s t o cup s t o napkins—ar e emblazone d with the familiar Peps i logo and instructions on how to win desirabl e prizes. But given the quality of even the name-brand foo d kiosk items, the students joke that Tagamet would be a more appropriate sponsor . On their way back to class, the students check out the Certs Interactive Social Calendar. When afternoo n classe s are over, the students retur n briefly t o their homeroo m fo r a series of PA announcements, high lighted by the Masterlock detention list. Many of the students will be returning that evenin g for the basketball game in the Old Spice-Ne w Balance Gym against traditional rival Charles Revlon Junior High. The school' s symbioti c relationshi p wit h variou s commercia l sponsors has been, not surprisingly, controversial. At first, many peo-

Introduction • 3

pie objected t o the ads for tobacco and distille d liquor, but i n light of these companies ' generou s financial terms , the y foun d i t har d t o argue against the Galweed Tribute to American Women and the Kentucky Guzzle r Firs t Amendment Display . After a while, both thos e particular display s los t thei r novelty , s o whe n Kentuck y Guzzle r switched to a display emphasizing the responsible use of its product s by person s o f lega l ag e only , th e students ' reactio n was , a t best , ambivalent. Eventually the "Kentucky Guzzler: For Adults Only" campaign was regarded a s tiresome an d stale . A sense of freshness thu s pervades the latest series of Kentucky Guzzler ads , focused o n fun , humor, sociability, social competence, success, and excitement , with only a few references to underage drinking and safe driving. The effect s o f ou r commercia l cultur e ar e important. Bu t com mercial advertising and commercial speech do not strike like natural disasters, leveling a n establishe d cultura l landscap e i n a moment' s fury. Instead , our commercia l cultur e affect s u s gradually and incre mentally, ofte n i n unnotice d ways . No manifestatio n o f ou r com mercial culture ever seems unprecedented, a departure fro m al l that has gone before. This book explores how the familiarity, pervasiveness, and incre mental developmen t o f ou r commercia l cultur e hel p insulat e i t from reasonabl e legal regulation. Let us return briefl y t o the exam ple of distille d liquo r advertisements , o n televisio n an d elsewhere . Some peopl e fin d suc h commercial s objectionable , dangerous , offensive, or , to som e degree , immoral. Bu t d o suc h commercial s lead t o the sort s o f harms t o which a free an d democrati c govern ment ma y properl y object ? Wha t concret e harm s ca n w e defini tively attribute t o liquo r commercials , a s opposed t o som e othe r source? Has our socia l science really advanced to the point o f bein g able to answe r suc h comple x causa l questions wit h clarit y and cer tainty?

4 • Introductio n

In all likelihood, the effects o f liquor commercials , if any, are diffuse, delayed , subtle, and easil y confounded wit h those of dozens of other possible causes of the same alleged effects. Does it make a differ ence, for example, whether the liquor commercials are run a t 7:00 P.M. or 9:00 P.M.? The time may make a difference i n the balance of political forces on this issue, but do such commercials make a noticeable differ ence in the cultural effects? What if the ads were shown only at 9:00 P.M. for a s long as it took most of us to become desensitized to their presence and then were shown als o at 7:00 P.M. ? Or a t 2:00 P.M., during a professional footbal l game ? Coul d w e show that an y harm resulte d from the ad's gradual expansion across channels or airtimes? What if the evidence as to whether liquor ads even increased over all alcoho l consumptio n wer e unclear ? Th e producer s would , n o doubt, argu e tha t liquo r commercial s onl y redistribute d marke t shares among brands o r increased thei r sale s only at the expens e o f beer an d wine. Perhaps, then, given the dro p i n consumptio n ove r the las t decade , an y ris e i n liquo r consumptio n i s onl y a natura l swing of the pendulum. Perhaps the controversy itself over showin g liquor ads on television has increased sales. In addition , if we have legally tolerated som e o f these commer cials, can we realistically objec t late r i f the numbe r o f liquor com mercials aired graduall y increases? Surel y such trends reflect marke t forces. Where can we find a demonstrable an d significan t differenc e in the harm that an increase in such ads causes? We can hardly ignore, furthermore, th e question o f the commer cials' content. Suppos e tha t man y o f the earl y liquor commercial s emphasize responsibl e drinking . What demonstrabl e har m woul d there b e i n the n switching , afte r a discree t interval , t o th e ads ' emphasis on fun, humor, sociability, or personal gratification ? Beer and wine commercials ar e not governe d by the same regula tions. Can we prove that the differences betwee n distille d liquor an d

Introduction • 5

beer and wine translate into significantly differen t level s of social harm? How can we take account, for example, of the fact that beer and win e commercial s d o no t rais e cultura l eyebrows , merel y because they are familiar an d established in our culture? Given all these problems, attempting to regulate such commercials legally is likely to look arbitrary, puritanical, speculative, repressive, heavyhanded, or unprincipled. Let us consider another cultural step. Even though we know that novelty i s collectivel y prized , an y prediction s o f futur e cultura l developments will likely seem far-fetched an d implausible. Part of the problem is—to exaggerate only slightly—that our commercial culture is divided between those events to which we have become inured and those predicted future development s to which we react with incredulity. The point is that wherever the battle lines are drawn in individual cases of commercial speech, it already is too late. The basic problem is not the harms that may be associated with any particular product or category of commercial speech—and this book's central concern is not with allegedly harmful products. The basic problem also is not that liquor distillers, along with beer and wine and tobacco sellers, contribute enormous sums of money to both major political parties. Rather, the basic problem is the pervasiveness of the culture of commercial speech in general. That is, we should be more troubled by the dominance o f the commercial cultur e than by any particular allegedly harmful instance of commercial speech. If we must focus o n particulars, however, we should recogniz e that the most serious harm caused by liquor advertisements in public schools is not, say, that some pattern of car wrecks can definitively be traced to those ads, to the exclusion of other causal influences . Instead, the most serious harm is that the school is teaching a generation of students that there is almost no place where commercia l

6 • Introductio n

advertising, commercial relationships, and commercial values do no t belong. This schoo l is , in effect , ratifyin g th e pervasivenes s o f ou r commercial culture . The pervasiveness, and eve n the predominance, o f ou r commer cial culture is really not a matter o f how much time , effort, o r atten tion we devote to commercial matters. In an earlier day, we may have devoted more energy to acquiring and spending and yet have lived in a les s pervasivel y commercia l culture . W e shoul d therefor e no t assume tha t today , mos t people , whateve r thei r station , ar e con sciously preoccupie d mos t o f th e tim e wit h purel y commercia l affairs. W e ma y hav e ou r collectiv e cultura l obsessions , bu t pur e commerce itself is hardly chief among them . The pervasiveness o f our commercia l cultur e is, more important , a matter of the ways in which commercialism an d commercial values affect ho w we experience the otherwise noncommercia l element s o f our lives . That is , personal relationship s tha t migh t otherwis e hav e been based primarily on friendship , love , respect, legitimate author ity, or consideration s o f dignit y hav e graduall y bee n tainte d an d transformed, howeve r subtly , by elements draw n fro m th e commer cial sphere. It is impossible to say precisely how our commercia l cultur e doe s and does not affect us . By now, it is difficult t o imagine a preexisting, noncommercial sel f to be subsequentl y affecte d b y the commercia l culture. On e possibl e misconception , however , ca n b e se t aside . There is no reaso n to assume that the primary effect s o f a commer cial culture must involve our consciously focusing o n money or productivity or even on acquirin g commodities . We might instea d fin d that ou r commercia l cultur e ha s revised mos t o f ou r valuation s o f novelty and permanence, glamour an d reliability, depth and superfi cial excitement, fashio n an d dignity , self-indulgence an d sacrifice , mind an d body, short an d long term, pleasure an d well-being, style

Introduction • 7

and substance , the coarse and the refined, th e nature o f maturity, o r the proper scop e of empathy and compassion . These sorts of effect s might prov e mor e importan t t o ou r cultur e tha n an y historica l change in the degre e to which we consciously focus o n commercia l consumption itself . Excessive commercializatio n doe s hav e a variet y o f rea l conse quences and is not automatically recognized or self-correcting. Som e of the most thoughtful persons , including judicial authority figures , wind u p hamperin g democrati c effort s t o reduce , reasonably an d fairly, th e excesse s o f commercialization . Fo r them , th e sprea d o f commercialization b y any means no t involvin g frau d o r deceptio n seems to be a natural reflectio n o f freedom an d th e pursuit o f wellbeing. This boo k i s intended a s a response t o thi s influential , bu t ultimately unsatisfactory, line of thinking. Chapter On e present s th e book' s majo r constitutiona l argument s and examine s issue s o f freedo m an d well-bein g i n th e contex t o f commercial fre e speec h cas e law. It show s that commercia l gettin g and spendin g is, except in the case of the poor, at best weakly correlated with happiness o r well-being. In addition , current fre e speec h law tends t o overprotec t non-misleadin g commercia l speec h fro m the standpoin t o f all the basic reasons fo r protectin g fre e speec h i n the firs t place , including consideration s o f personal self-realizatio n and persona l autonomy . Free speech law in part reflect s th e curren t absence of any consistent, serious, appropriately scaled institutiona l counterspeech challengin g the culture of commercial speech . Chapter Tw o applies some of these constitutional argument s t o a discussion o f th e logi c o f tobacco-advertisin g regulatio n an d th e socioeconomic-class dynamics of tobacco consumption. We also examine the differenc e betwee n expressiv e an d pragmati c justification s

8 • Introductio n

for regulating commercial speech. This chapter points out that unde r current free speech law, both government regulators and tobacco sellers have stron g incentive s t o mislea d u s by centering th e tobacc o advertising debate on smokin g by underage consumers . Neither th e government nor the tobacco sellers have much interest in recognizin g the inconvenient trut h tha t smokin g is increasingly a socioeconomi c class-linked phenomenon . Chapter Thre e shift s th e focus fro m a particular commodit y to a developing medium of commercial speech, the Internet. The Interne t is treated as a test of what we believe about the extent and inevitabil ity of our culture' s commercialization . I n fact , the Interne t ma y be, because of its rapid growt h an d mutation, a good illustration o f th e power o f our commercia l culture . That is, it may be in the process of transforming itsel f into an institution in which commercial consider ations, while certainly not dislodgin g other elements , become perva sive and increasingly dominant i n the case of any conflict, analogou s to the powers and limitations of traditional colonial rulers. Chapter Fou r shift s fro m mediu m t o technique, concentrating o n the functions o f various sorts of intentionally controversial commer cial ads. Some commercia l enterprise s ar e driven b y the increasin g "ad clutter " to produc e mor e entertainin g o r mor e controversial , attention-getting ads . We sometimes assum e that envelope-pushin g controversy i n advertisin g i s politicall y progressive . Thi s chapte r explores a number o f reasons that thi s assumption i s unrealistic. In particular, w e not e th e ris e o f ambiguous , pseudoprogressiv e ad s that ca n be seen as either progressive or not progressive , dependin g on the viewer's own sympathies . Chapter Five looks at several different categorie s of consumers, or the audiences for commercia l advertising , and ho w those audience s are depicted , appeale d to , and affected . I n particular , w e conside r both th e overlapping an d the conflicting interest s of advertisers an d

Introduction • 9

minority groups, women, and children and address the relationship between advertisin g an d th e freedo m an d well-bein g o f thes e groups. Finally, Chapter Six examines the elephantiasis of our commercial culture as a whole and describes some of the most common ideological reactions to that culture, such as the ambivalence and accommodation of various forms of liberalism and conservatism. Before beginning, I should point out the limitations of any attempt to analyze the culture of consumption promoted by advertising and commercial speech in general. Precision and certainty in this matter are unattainable. Lab experiments are impossible. Control groups are unavailable. Indeed, it i s hard eve n to imagin e a society tha t resembled our own in all other major respect s but was not signifi cantly influenced culturall y by commercial speech promoting commercial values . Such a society woul d see m no t s o muc h t o b e a control group, with only one key variable adjusted, but, rather, an alien society. Fortunately for our analysis, this limitation itself begins to tell us something about the role of commercialization an d commercial values in our society. We might als o suppos e tha t ou r concern s ar e far-fetche d an d overblown. Surely, we might think, our depiction of the commercialization of Arrid-Mentos Junior High is an absurdly unrealistic fantasy. Unfortunately, it turns out to be too well grounded in the logic of commerce and school funding t o reside only in the realm of fantasy. Right after I wrote about Arrid-Mentos Junior High School, the New York Times reported tha t th e encroachmen t o f commercia l pitches and sponsorships in the schools is already under way. The Hershey Food s Company , fo r example , sponsor s a "Chocolat e Dream Machine" video and curriculum guide. 1 Ads and radio-style commercials fo r variou s product s ca n alread y be found i n som e

10 • Introductio n

schools. Some of our horror storie s may still be fantasies, but realit y is catching up with fantasy at an alarming speed . Perhaps the pedagogy o f consumptio n serve s too man y interest s to be anything other than inevitable. And a corporate presence in the public schoo l classroo m i s admittedl y no t a ne w phenomenon : short, self-serving, industria l film s hav e been a classroom stapl e fo r decades. Still, such a corporate presenc e may be a matter o f degree , and we should remain abreast of even inevitable trends. The motives an d temptation s underlyin g th e commercializatio n of the classroo m ar e easily understood. Th e commercializatio n o f the publi c schoo l i s nonetheles s a betrayal o f th e students ' basi c interests. Public schools shoul d reflec t popula r sovereignt y and ou r democratically expresse d will . Simultaneously, th e publi c school s should honor, express, and embod y our democrati c values and aspi rations. Finally , th e publi c school s should , fo r th e sak e o f thos e democratic values , retai n som e distanc e an d critica l detachmen t from al l cultural institutions an d force s onl y imperfectly embodyin g those values. Pretending tha t a thicknes s contes t betwee n Preg o an d Rag u spaghetti sauce—another very real case, by the way—is the best way to promot e a knowledge of , o r eve n a n interes t in , rea l scienc e i s merely capitulating t o powerful cultura l forces . Commercial force s must be kept a t a distance permitting critica l examination. Student s are usually subjects rathe r than targets. Schools should no t be in th e business o f implicitl y announcin g tha t commercia l force s ar e deservedly, or a t least inevitably, everywhere an d tha t n o sanctuary , no perspective, no integrity, is possible. Some student s clearl y recognize , an d hav e mixe d reaction s to , public schoo l commercialization . A t som e level , spaghett i sauc e comparisons—to th e intende d advantag e o f on e competitor—ar e more fun tha n real scientific experimentation. At another level, how-

Introduction • I I

ever, some student s a t least diml y appreciat e tha t the y ar e being devalued, manipulated, and deprived, and they may express their dissatisfaction. But it is neither fair nor realistic to expect students to be more mature and farsighted than the adults who make pedagogical decisions on their behalf. In the meantime, we are in the process of selling the students' birthright—autonomous, critical decision making—for gy m shoes.

Commercial Speech i n Context These ... advertised wares ... were his symbols an d proof s o f excellence ; a t firs t th e signs, then the substitutes, for joy and passion and wisdom.

c h a p t e r o n

e

Consider a typica l ca r commercial , on e emphasizin g hig h perfor mance or attractive lease terms. Were it not for the ad producers' technical artistry, the odd disclaimers and qualifications woul d stand out : This stunt was performed b y a professional drive r o n a closed track . Always wear you r safet y belt . Do no t attemp t thi s a t home . O r th e stream of lease terms and conditions such as required down payments, interest rates, and total payments is delivered so quickly as to call into question whether the seller really wishes us to dwell on such matters. Not al l these disclosure s ar e made b y the selle r voluntarily. Th e government, usually at the federal level, may have pressured or simply 12

Commercial Speec h i n Contex t • 1 3

legally required th e industr y t o incorporat e suc h declaration s int o their commercials . How can the governmen t d o this? A car is not a bogus cance r cure . Certainly not al l the regulate d commercial s ca n be claimed to be coercive, fraudulent, o r deceptive . What happene d to freedom o f speech? The government eithe r i s prohibiting th e seller from sayin g wha t it wants to say, in its own way, or is requiring the seller to say what i t does not want to say. Isn't free speech restricted in either case? Just as the government can' t preven t u s from sayin g what we believe, so it can't pu t word s i n ou r mouth . Th e governmen t can' t forc e u s t o salute the flag, recite a party platform, or , presumably, even sign ou r e-mail. Thousands hav e fought an d die d t o establis h thes e princi ples. Aren't similar principles at stake, to a similar degree and in similar ways, in car ads and in commercial advertising in general? We expect the government t o have the constitutional authorit y t o regulate the production an d sal e of goods and services . The govern ment ca n impoun d dangerou s drug s an d ba r the m fro m sale . But shouldn't w e dra w th e lin e a t regulatio n o f speech ? W e expec t mandatory recall s of dangerous drugs , but wh y should th e govern ment b e allowed to regulate speech toutin g drug s that ar e not dan gerous? Isn' t tha t paternalis m i n th e real m o f thought ? Surel y w e cannot sa y that speec h touting commercia l product s i s not impor tant or is of little interest to us. Some products ar e more controversial, and more dangerous, than others. Tobacco and alcohol products are examples. Nonetheless, these products ar e legally available fo r sal e to adults . Why should adults ' choices of what product to buy be any more subject to regulation tha n adults' choices of which political ideology to "buy"? Let us begin b y considering the broader issue of commercial speech and culture. We live in a remarkably commercialized culture , one that has constantly been changing but, for the moment, whose commercializatio n

14 • Commercia l Speec h i n Contex t

seems inevitable. Our culture does contain noncommercial elements , and some of our ways of living are less commercialized tha n others . Nonetheless, we can deny the cultural predominance o f commercial ism only in the way that a fish might deny the significance o f water. We need not focus on a single precise meaning of the idea of commercialism fo r al l contexts. The boundary between th e commercia l and the noncommercial i s often, thoug h certainl y not always , clear. The Unite d State s Suprem e Cour t itsel f ha s bee n inconsisten t i n defining commercia l speech, but to no great loss. Typically, our intu itions abou t wha t i s more an d les s commercialize d ar e adequate . Distinctions in kind and of degree usually are easy to make. However paradoxical i t might seem , we even can ofte n agre e that som e com mercial purchase s ar e les s commercia l tha n other s an d tha t th e degree o f commercialis m varie s amon g produc t categories . Fo r instance, buying a copy of the Hindu Upanishads is in a sense a commercial transaction, but it may also be much more . The importanc e o f particular cultura l institution s i s not alway s mirrored by their degree of federal constitutiona l protection. Gener ally, we value institutions suc h a s housing, employment, recreation , education, families , an d friendshi p opportunities . But eithe r thes e institutions ar e not specificall y mentione d i n th e Constitution , o r they are protected in only limited ways. The Constitution does , however, explicitl y protec t speech , an d s o w e migh t simpl y conside r commercial speech to be a subset of speech in general. Until recently, the Supreme Cour t di d not trea t the government' s regulation o f commercial speec h a s different fro m it s overall regula tion o f business activities , but tha t ha s now change d dramatically . Among othe r reasons , the Suprem e Cour t ha s noticed o r has bee n willing to admi t tha t man y o f us care more passionatel y abou t ou r choices amon g competin g brand s o f automobiles , running shoes , pharmaceuticals, hamburgers, antacids, malt liquors, and cigarette s

Commercial Speec h I n Contex t • 1 5

than abou t the major politica l candidates for electiv e office o r abou t which scientific o r aesthetic theory is best. The Suprem e Court' s initia l embrac e o f commercia l speec h di d not, however, equate the constitutional statu s of commercial speec h with that o f political, artistic, or scientific speech . That is , the Cour t was willing to distinguish false , deceptive, or misleading commercia l speech fro m commercia l speec h withou t thes e attribute s an d t o refuse t o give protection t o the former. Plainly , the Cour t would no t tolerate governmen t regulatio n o f "misleading" political speech. But even commercial speec h that was not false , deceptive, or misleadin g received a t least slightly less constitutional protectio n tha n did , say, political speech. In the past few years, the Suprem e Court' s treatment o f non-mis leading commercial speec h has not been readil y predictable o r con sistent. If there has been a discernible tren d beyon d th e Court' s fits and starts, backtracking, and ambiguities, it has been in the directio n of greate r constitutiona l protectio n fo r commercia l speec h no t thought deceptiv e or misleading, at least not i n any narrow or direc t way. Showing merely that the government regulatio n o f such speec h can be said to be broadly reasonable is not now sufficient t o save the regulation. It seems fair to say that the Court is less likely to reduce significantl y than to maintain or expand its protection of commercial speech, especially commercial speech that is not deeme d misleading. It is possible that the Court will cease, in practice if not in theory, to offer les s constitutional protection to commercial than to political speech. We might no t fin d troublin g th e trend towar d increasin g protec tion fo r commercia l speech, especially when suc h speech is not con sidered deceptive . What' s wron g wit h rigorou s constitutiona l protection for such speech? Why shouldn't we welcome—and a t least ratify if not extend—such constitutiona l protection ?

16 • Commercia l Speec h i n Contex t

This book seek s to answer that questio n an d to provoke others t o offer bette r answers . In brief, the costs and conflict s i n the basic values at stake in commercial speec h cases are much mor e serious tha n the Suprem e Cour t ha s so far recognized . I am no t arguin g for elit ism, or for a "high" culture a s opposed t o a "low" culture. Instead, I appeal to broadly shared values. We should not assum e that we once lived i n a golde n ag e o f pristin e noncommercialism , bu t w e als o should no t merel y rationaliz e wha t appear s t o b e inevitable . W e should not suppose that the unwashed masses are helpless before th e subtle manipulations o f contemporary advertising ; we are, as a people, too experienced, too distracted, or too cynical for that . We shoul d no t b e surprise d i f a commercialize d societ y afford s whatever protection t o commercial speec h seems necessary, whether that protection i s at the level of the federal Constitutio n o r of othe r sorts of legal protection, or at a broader cultural level. It may be that to some degree, these forms o f protection ar e interchangeable. And cer tainly, many factors affec t th e degree of a society's commercializatio n other than its legal or constitutional regime. But it seems unlikely that the degree of constitutional protection fo r commercia l speech reall y makes no difference t o the greater society, even over the long term. Thus it is not surprisin g that a commercialized societ y eventuall y extends t o commercia l speec h a constitutional protectio n beyon d requiring a demonstration o f merely the reasonableness of the regu lation. Thi s seem s eve n les s surprisin g i f th e societ y a s a whole i s leaning toward increasin g commercialization an d commercia l influ ence and i f the government regulator y apparatus has also expande d in scope and power over roughly the same time. Our bes t understandin g o f freedo m o f speec h ma y emphasiz e instead th e nee d t o protect th e speec h o f the outcas t an d th e rela tively powerless. It is clear tha t constitutiona l right s ar e often wo n not throug h politica l weakness, need, or logic but throug h politica l

Commercial Speec h i n Contex t • 1 7

and economi c strength . Commercial element s ar e generally capabl e of lobbying an d litigatin g o n behal f o f their ow n interests , and th e rise of the New Deal regulatory state provided the m wit h incentive s and opportunitie s t o d o so . Often, thoug h certainl y not always , the overall commercial interes t ha s been t o avoid or reduce the govern ment's restriction o f commercial speech , however muc h som e com mercial groups might profit fro m restriction s on commercial speech. Currently, an od d coalitio n o f social and ideologica l forces favor s the rigorou s constitutiona l protectio n o f commercia l speech . Bu t there i s really no convincin g reaso n t o believe that i n ou r cultura l context, rigorou s protectio n fo r commercia l speec h promote s th e overall freedom an d well-being of the public. In ou r culture , reducing the curren t degre e o f constitutiona l protectio n o f commercia l speech would, in general , enhance both freedo m an d well-bein g i n the long term, but no t becaus e som e commercia l speec h i s false o r narrowly deceptive or misleading. Rather, beyond a certain degree of cultural pervasiveness, commercial speec h tends to undermine free dom, autonomy, and well-being. However muc h w e might prefe r t o preten d otherwise , our con temporary cultur e offer s n o meaningfu l institutiona l challeng e t o the deep and pervasive influence o f commercialism an d commercia l speech. No cultural institution i s currently both abl e and inclined t o offer a meaningfully scale d "counterspeech" to the broad intended o r unintended "message " of commercia l speec h i n it s various forms . Any reasonable regulatio n o f commercial speec h may be based o n a narrower, particularized justification , suc h a s promoting conserva tion, nutrition education , the knowledgeable purchas e o f securities , health, or the safet y o f the consume r o r third parties . But any suc h reasonable regulatio n als o tends, if only in a minimal an d indirec t way, to contribut e i n broader way s to the citizens ' overall freedom , autonomy, and well-being.

18 • Commercia l Speec h i n Contex t

The reasonabl e regulatio n o f eve n nondeceptiv e commercia l speech implicitl y question s th e proper rol e o f commercialis m an d commercial speec h in our culture . This does not mea n tha t the government itsel f ca n be relie d o n t o counterbalanc e th e influenc e o f commercialism. Nor doe s it mean tha t questionin g the cultural sov ereignty of commercialism b y itself effectivel y validate s real alterna tives t o commercialism . Rather , th e reasonabl e regulatio n o f commercial speec h is merely one step in a complex process of legitimizing an d facilitatin g fre e choice s o f eithe r commercia l o r les s commercial style s of life, consistent with democracy , the free speec h clause, and the rest of the Constitution . The Suprem e Court' s expansio n o f constitutiona l protectio n fo r commercial speec h ha s been controversial . Commentators, in fact , are divide d o n whethe r o r precisel y ho w t o exten d constitutiona l protection t o commercia l speech . Unfortunately , thi s debat e ha s usually been poorly structured, with the commentators ofte n fallin g into definitiona l traps . Typically they begin with eithe r a broad o r a narrow rang e o f purpose s an d value s underlyin g th e fre e speec h clause. The y the n characteriz e wide r conception s o f th e value s underlying freedo m o f speech i n suc h a way as to encompas s com mercial speec h withi n th e scop e o f protecte d speech . At the sam e time, they construe narrowe r understanding s o f the values underly ing free speec h i n suc h a way as to exclude commercial speech . The problem, of course, is that whether one ends up protecting commer cial speec h depend s almos t exclusivel y o n well-wor n an d perhap s interminable debate s over the scope of the purposes underlyin g th e free speech clause. This tra p ca n b e avoided , though , i f by adoptin g a larger cul tural focus , we ca n accep t a broadly inclusiv e view o f th e reason s for protectin g fre e speec h whil e stil l concludin g tha t th e restric tions o f commercia l speec h nee d onl y be reasonabl e i n orde r t o

Commercial Speec h I n Contex t • 1 9

pass constitutiona l muster . Th e ide a i s t o sho w tha t a relativel y restrictive approac h t o commercia l speec h nee d no t res t o n eithe r unappealing values or a narrow construal o f the reasons for protect ing free speech in the first place. We can and should accept an expan sive, accommodating vie w of the values served by free speec h and , on tha t basis , limit th e Court' s curren t protectio n fo r commercia l speech. Let us begin our analysis with a bit of folklore that seems almost culturally universal . Man y o f u s gras p thi s insigh t a t som e tim e o r another, and th e sage s commonly confir m i t for us . Simply put, we believe tha t th e relationshi p betwee n acquirin g market-produce d goods and services and achieving the sort of happiness or well-bein g we most desire is, at best, dubious. This insight antedate s the anxietie s of postindustrialism. We fin d essentially thi s thesi s i n th e Discourses o f Epictetu s an d i n th e Analects o f Confucius . Simila r theme s ar e echoed b y Jean-Jacque s Rousseau i n th e Discourse on the Origin of Inequality, b y Henr y Thoreau i n Walden, by Thoreau's colleagu e Ralph Waldo Emerson , and b y the poe t William Wordsworth. Kar l Marx explore d simila r ideas in his Economic and Philosophical Manuscripts. It is possible to dismiss each of these writers as somehow outsid e the mainstream. Epictetus was a Stoic given to asceticism. Confuciu s was denied familiarit y wit h th e miracles of modern industria l pro ductivity. Rousseau , Thoreau , Emerson , an d Wordswort h wer e a t least vaguely Romantic figures , inclined towar d th e cult of the nat ural. Marx's attitude toward capitalism divide d civilizations . But a hasty dismissal of these writers is unwarranted. Their stric tures reflect moments of common experience. Rousseau, for example, convincingly notes that w e convert forme r luxurie s int o "negative " necessities whose absence creates a sense of deprivation an d unhap -

20 • Commercia l Speec h i n Contex t

piness but whose presence has largely lost the power to please. Our inevitable, and often rapid, psychological adjustment to the possession of most goods means that we derive only minimal satisfaction fro m them while at the same time becoming vulnerable to losing them, or to the fear of losing them. Rousseau thus recognizes a certain treadmill-like, or vaguely addictive, quality in many consumer purchases. The process that Rousseau describes does not apply only to commercial goods and services. Even though a promotion at work, for example, is not a tangible good or service, we may expect to be permanently happier i f it is given to us. The promotion ma y in fac t bring with it a sense of euphoria, followed by an upward adjustmen t in our expectations, thereby leaving us no better off . Even though i t may seem true at first, it is ultimately wrong to assume that getting what we want never makes us happier over the long term. This assumption may apply to commercial goods and services—does a heart transplant count?—and even to most noncommercial desires, including a promotion at work. Suppose, however, we want a stable, loving relationship on which we can rely without reservation. If we are happier as a result of creating such a relationship, should we assume that our happiness will be only temporary? Is the happiness of a deep, mature friendship reall y as transient as that derived from a coveted toy? Can't it be self-renewing, or at least decay more slowly than the happiness obtained from acquiring commercial goods? We also cannot attribut e this argument t o Rousseau's idiosyn cratic views, as we might also have cited Erasmus, Montaigne, or Durkheim. Immanuel Kant, no less than Rousseau or Henry David Thoreau, argues in his Lectures on Ethics that as our wealth and purchasing power increase, so do our wants and that the act of "satisfying" those wants is ultimately illusory, in that our appetite for more is quickly sharpened.

Commercial Speec h i n Contex t • 2 1

Marx was, of course , deeply interested i n the possibility of non commodified standard s fo r huma n relationships . This idea , alon g with his interest in various forms o f authenticity and alienation, was developed by later writers under the ambiguous rubric of "commod ity fetishism." I n a n informa l sense , commodity fetishism refer s t o excessive dependenc e o n th e ownershi p o r marke t exchang e o f objects an d service s i n th e pursui t o f self-respec t o r happiness . I n this nontechnical sense , commodity fetishis m mean s expandin g th e sphere of market exchange in ways that eventually impede the fulles t and highest development o f one's personality. It is possible—if no t tru e by definition—that marke t exchange s tend t o maximiz e th e wealt h o f th e transactin g parties . Marke t exchange i s commonly though t t o presume, embody, o r maximiz e freedom i n som e sense and thereb y to remove the necessity of gov ernment restrictio n o f the voluntary exchang e o f non-misleadin g commercial information . None o f these arguments shows , however, that restraint s o n com mercial speech undermine well-being or freedom i n the fullest sense . The commodity fetishism theorist s rightl y observe that marke t the ory does not establis h tha t freedo m an d well-bein g ar e maximize d when market s conver t th e broad rang e o f differen t kind s o f socia l relationships int o market-base d relationships . Freedom an d happi ness may well not be maximized whe n the logic of market exchang e affects th e nature and qualit y of nonmarket relationship s by making them seem peripheral or ineligible. Attempting to satisfy social needs—including thos e often fulfille d by friend s o r family—throug h commodit y exchang e ma y no t s o much maximize our wealth as convert us into different i f not incom mensurable people—who see k beneficial economi c exchanges at the expense of worthier an d more fulfilling goals . That is, we may not be better of f but , instead, worse in al l but a narrowly pecuniary sense .

22 • Commercia l Speec h i n Contex t

Perhaps i t i s impossibl e t o avoi d ou r culture' s gradua l shif t i n emphasis from production—initiall y drive n in part by otherworldl y considerations—to th e immediac y o f consumption . Productio n requires consumption, of course, and increasing production require s that the act of consumption b e legitimate and unstigmatized. But we are not necessaril y made free r o r happie r b y commercializing ou r lives, even if all our choices are voluntary and not narrowly coerced . Through it s eventua l pervasiveness , commodificatio n i s largel y self-justifying. Commodificatio n a s a lifestyle of persons and societie s is a matter o f degre e and proceed s almos t imperceptibly . Bu t onc e commodification become s sufficientl y widespread , an y substantia l departure from exchang e as the primary vehicle of satisfying huma n needs come s to see m unnatural , risky , sentimental, outdated, con fused, alien , lonely, deviant, Utopian, sacrificial, or simply inconceivable. Once commodification i s sufficiently ubiquitous , it assumes a n entrenched, loosely monopolistic characte r an d may even reduce ou r ability to imagine, pursue, or appreciate other ways of living. This entrenching proces s takes place even if the logic of the mar ket fails t o maximiz e huma n fulfillment . Writer s suc h a s Thorstei n Veblen, R. H. Tawney, John Maynard Keynes, and John Kenneth Galbraith hav e variously argue d tha t th e moder n emphasi s o n fulfill ment throug h consumptio n ha s bee n les s successfu l tha n th e economic textbooks migh t lead us to imagine. We can test this view not onl y by introspection an d reflectio n bu t als o by social science , especially survey evidence. Adam Smith , a writer usuall y sensitive to the virtues o f markets , concluded: Wealth and greatness are mere trinkets of frivolous utility, no more adapted for procuring ease of body or tranquility of mind than the tweezer-cases of the lover of toys; and like them too, more troublesome to the person who carries them about with him than all the advantages they can afford hi m are commodious. 1

Commercial Speec h I n Contex t • 2 3

We may fairly conclud e that doubt s abou t th e relationship betwee n consumption an d happines s ar e not confine d t o those least sympa thetic to the market economy . Let us now consider som e of the evidence regarding the relation ship between consumptio n an d well-being . Our well-bein g o r hap piness—insofar a s it is affected b y consumption—depends no t onl y on ou r ow n lifestyle choice s but als o on thos e o f others . We might , for example , b e happ y wit h wha t w e migh t cal l a consumptiv e lifestyle fo r ourselves , but onl y if many other peopl e choose anothe r lifestyle. We may individually benefit i n certai n way s if most o f u s focus o n consumption , bu t thes e effect s ma y no t necessaril y pre dominate. Perhap s w e al l will deman d th e sam e goods , for whic h there may be no goo d substitutes , thus driving up their prices faste r than th e expansio n o f supply or the economie s o f scal e can reduc e them. This is not t o argue what i s likely, only what i s possible, and i t is possible that most of us will suffer i f most of us focus on commer cial consumption. Ou r ow n welfare a s consumers ma y suffer i f to o many persons similarl y emphasize consumptio n a s their sourc e o f happiness. We ma y well be happie r a s consumers , fo r example , i f more of those around u s devote their lives to nurturing, virtue, noncommercial creativit y an d invention , o r publi c servic e i n a broa d sense. Are we really better of f wit h fewe r heroes , saints, and friend s and more shoppers ? This effect doe s not by itself sho w that ther e is anything intrinsi cally wrong with a consumptionist lifestyle . There i s nothing inher ently wrong with being devoted, say, to one's farming operatio n a s a source of happiness. This would mea n concentratin g o n productio n as opposed t o consumption. But we might be chagrined, and clearl y worse off, i f we discovered tha t to o man y other peopl e were takin g up farming , thereb y makin g ou r othe r materia l an d nonmateria l needs were mor e difficul t t o meet . Th e market , o f course , usuall y reduces th e numbe r o f farmer s t o som e economi c i f no t cultura l

24 • Commercia l Speec h i n Contex t

optimum, but som e persons ma y be much happie r a s farmers tha n in some alternative role into which the market steers them. It is possible that just as the price of medical services tends to dro p when th e number o f physicians rises, so the rewards of a consumptionist lifestyl e coul d diminish—perhap s throug h somethin g lik e congestion o r mutua l interference—i f to o man y o f us focused o n consumption, thus providing incentives to reduce our concentratio n on consumptio n a s the ke y to happiness . If we all can afford , an d actually buy, the most fashionable sunglasses , running shoes, and th e like, such item s will lose their appeal . Indeed, we derive almos t n o gratification fro m ownin g numerou s appliance s tha t woul d b e beyond price for Louis XIV. Likewise, we may assume that th e market proces s works reason ably well in the case of physicians, but we cannot exten d the logic of this proces s b y mean s o f assumption . Th e decisio n t o becom e o r remain a physician, fo r example , an d t o see k fulfillmen t throug h consumption ar e clearly different. N o one becomes a physician without consciousl y an d explicitl y choosin g t o g o t o medica l school , however il l informed o r casual the decision an d however unfamilia r the alternative s ma y be. At least we are awar e o f th e alternativ e o f going or not goin g to medical school. In many cases, we choose with reasonable freedom t o go to medical school, even if others would b e disappointed by a contrary choice. Few of us, nevertheless, consciously and explicitly weigh our choice to emphasize consumption a s the main roa d to happiness. There are no applicatio n form s t o fil l out . There i s no particula r momen t o f decision. We may not even be aware that we have made, or are repeatedly reinforcing, such a choice. How, after all , would we know that we are emphasizing, or even overemphasizing, consumption? Compare d with whom? What i f most o f the people aroun d u s seem roughly as consumption oriente d a s we are? How would we know that our con -

Commercial Speec h i n Contex t • 2 5

sumptionism i s making us pay an unnecessary price? How could we do mor e tha n gues s a t the rea l cost s an d benefit s o f lessening ou r emphasis on consumption? What would this transition involve ? In our society , the alternatives to emphasizin g consumptio n ma y seem unrealistic. In fact , onc e we reach a point a t which consump tionism seem s normal fo r u s and i s widely exhibited by our peers , it maybe too late. That is, the costs of reducing our focus on consump tion ma y a t tha t poin t b e quit e large , psychologically, socially , o r financially. Fo r example, it may be hard fo r u s to acquir e skill s tha t we have abandoned o r neve r learned , like trying t o learn a foreig n language without a n accent . We may be locked into dauntin g finan cial commitments, leading us to rationalize away alternatives that n o longer see m feasible . We do no t calculat e ho w eas y it would b e t o quit smoking , taking addictiv e drugs , or overindulgin g i n foo d o r alcohol simply by comparing two static pictures of ourselves, before and after . Th e fact tha t we would hav e been better of f ha d we never started dow n a consumptionist pat h doe s not mea n tha t i t is practical now to turn back. This goes to the problem o f real freedom . The problem i s rather a deep one . Even i f we were free t o mov e our focu s fro m consumption—onc e w e have become habituated t o consumption—it ma y not be worthwhile t o attempt t o change. It is possible that a life of consumption ma y actually enhance the psychological rewards o f de-emphasizing consumption . Perhap s the shoc k of contrast once we abandon consumptionis m would make the transition mor e enjoyable . Bu t thi s i s hardly guaranteed . Any lifestyl e involves sun k costs , unanticipate d commitments , los s o f certai n potential abilities , and personalit y changes . A life oriente d towar d consumption affect s ou r capacities , whether o r no t w e recogniz e those effects . Som e o f the capacities , aptitudes, and skill s necessar y to enjoy nonconsumptive ways of living may be irreparably impaire d or permanently stunted through disuse .

26 • Commercia l Speec h i n Contex t

To the extent this is so, we would have to face the unpleasant real ization tha t a s consumptionists, we are both les s free an d less happy than we could have been but that for some of us, it is not realisticall y possible to improv e ou r circumstance s o r eve n to captur e muc h o f what we have lost. In a pervasively commercialized culture , perhap s this point o f no retur n commonl y arrive s at a surprisingly early age, and perhaps we all sense that this is the case. In an y event , we nee d no t choos e betwee n optimisti c an d pes simistic scenarios in this regard in order to examine some of the evidence o f th e links , o r lac k thereof , betwee n consumptio n an d well-being. Much of the survey evidence does not pertain directl y to consumer spending but, instead, to income or wealth and happiness. In th e abstract , therefore , i t seem s imprope r t o trea t incom e a s a proxy for consumer spending . But what is unfortunate fo r America n retirement prospect s is fortunate fo r ou r inquiry . Unlike some othe r societies, our s doe s no t radicall y distinguis h i n practic e betwee n income an d consume r spending . Our collectiv e private saving s rat e is both historicall y an d internationall y low . In fact , mor e tha n 9 0 percent of American incomes are devoted to consumption . Given these generally low savings rates, those people who sav e an even lower percentage o f their incom e may be unhappy o r insecur e about tha t very fact. Bu t at least they are obtaining more consume r goods, presumably, than the y would have if they had se t aside mor e money fo r savings . In an y event, we take advantag e o f ou r curren t general inability , o r disinclination , t o sav e privately , b y treatin g income as a proxy for consume r spending . For many economists, the voluntary consumptio n o f goods an d services is not the beginning but the end of any serious inquiry int o the relationship between consumption and happiness. Any disturbing gap between consumptio n an d happiness i s assumed t o reflect mat ters such as force o r fraud, change s in taste, or unexpected defect s o r

Commercial Speec h i n Contex t • 2 7

dangers in the products consumed . Many of us generalize an d sim plify suc h a n outloo k b y assumin g i n practic e tha t mone y an d spending money are associated with happiness. Many of us suppos e that i f ou r income s an d expenditur e level s were , say , 2 0 percen t higher, we would be significantly happie r over the long term. According to most o f the available social science evidence, however, these beliefs are likely to be wrong. Consider first the undeniabl e general and quite substantial increase in American living standards in the decade s following Worl d War II , despite the various periods o f recession, stagflation , an d lo w wage an d productivit y growth . Fo r long periods , rea l incom e ros e substantially , bu t durin g th e sam e periods, reported levels of satisfaction remaine d the same or decline d slightly. Durin g som e o f thi s time , th e numbe r o f respondent s describing themselves as "very happy" steadily decreased, a trend tha t was most pronounced amon g the most affluent . We might be tempted t o dismis s these results as the reflection o f unique historica l events . Naturally, we might imagine , a pre-Sputnik America wit h fe w economi c rival s would , al l els e being equal , b e happier tha n a post-Vietnam, post-Watergate America. In response , however, we could conten d that , first, the trends i n reported subjec tive satisfaction hav e not recentl y been reversed . As the dat a ques tioning th e lin k betwee n consumptio n an d happines s ar e furthe r extended i n time , i t become s increasingl y implausibl e t o dismis s them as merely reflecting uniqu e historical events. Second, anyone who tries to explain the data on consumptio n an d happiness by appealing to broader historical or cultural events comes perilously close to undermining, rather tha n rescuing , the claim tha t consumption lead s to happiness. Why not suppose , for example , that collective happiness i s affected b y an unpopular , divisive , or unsuc cessful war on the scale of the Vietnam War, independent o f the war's effects o n ou r collectiv e income o r spending? This is not to endors e

28 • Commercia l Speec h i n Contex t

such a thesis but t o point ou t tha t i t is of little service to those wh o maintain that consumption i s associated with happiness. Third, the weakness of the relationship between income or spend ing and happines s i s supported b y a surprisingly larg e an d divers e number o f studie s an d perspectives . Th e evidenc e extend s fa r beyond the American context . The minimal connection—i f no t th e lack thereof—between incom e an d well-being apparently applies t o most develope d countries , even though som e studies, or interpreta tions of studies, reach the opposite conclusion . In fact , though , som e evidenc e suggest s tha t th e lin k betwee n income an d happines s i n th e United State s is growing weaker ove r time. It has been found, a s well, that despit e the geographic regiona l differences i n income levels around 1970 , the residents o f souther n states judged the quality of their lives slightly more positively than di d the residents o f other regions . Far less decisively—but nonetheles s intriguingly—a surve y o f twenty-tw o winner s o f larg e lotterie s found n o significant differenc e betwee n their happiness levels and the happiness levels of controls. More broadly, the research suggest s tha t wealth does not tend to reduce the amount o f worrying in which on e engages; wealth instead simply changes the subject o f the worrying. As a general rule , then, though wit h som e qualifications , happi ness does not appea r t o be meaningfully linke d i n ou r cultur e wit h income an d wealt h or , presumably, wit h consume r spending . Bu t this general finding i s less plausible i n the specifi c case of the poor , whether a t the level of relativel y poor nation-state s o r o f the rela tively poor i n a particular nation-state . Surel y the poo r woul d b e better off with higher levels of consumption, whatever other reason s there may be for relieving poverty. There i s actually some controvers y ove r whether poo r societie s are significantly unhappie r tha n ric h societies. In any event, because the United State s does not fal l int o th e forme r category , seeking t o

Commercial Speec h i n Contex t • 2 9

increase ou r collectiv e happines s b y raisin g consume r spendin g does no t see m lik e a promising strategy . O f greate r interes t i s th e relationship between incom e an d happines s amon g the poor i n ou r own society . Abolishing povert y i s among ou r foremos t publi c mora l duties , whether o r no t suc h action s hav e an y effec t o n reporte d level s o f subjective happiness . In an y event, any declining marginal utilit y of wealth i s o f limite d relevanc e t o th e poor , an d th e spendin g o f money ca n a t least relieve som e form s o f physical distress , such a s extreme hunger , pain, and cold . It is thus no t surprisin g tha t poo r people in our societ y report greate r unhappiness. Perhaps they compare themselves with the better-off mor e readil y than th e citizen s of poor countries compare themselves with foreigners . Assuming som e negativ e correlatio n i n ou r societ y betwee n poverty and happiness, however, does not carr y the analysis very far . For example, we should no t lose sight of the obvious. A person wh o is both col d and poo r typicall y benefits mor e fro m actuall y obtain ing a warm coa t tha n fro m unfettere d commercia l speec h abou t coats, even when th e indirec t benefit s o f advertisin g i n enhancin g quality and driving down prices are considered . Undoubtedly, the poor benefit from , say , the vigorous advertisin g of prescription dru g prices, at least under some health insurance an d welfare policies . But there also are costs for th e poor i n uninhibite d commercial speech , even i n thi s narro w sphere . Prescription dru g price advertising may impair the commercial viability of small, independent pharmacie s owne d b y persons with a long-term stak e in a poor community . There may thus be some trade-off betwee n pric e and the availability of a pharmacist wh o has ties to the poor, know s their needs , recognizes the m a s individuals, an d ca n establis h th e sort of caring relationships that ma y be important t o their health o r personal happiness.

30 • Commercia l Speec h I n Contex t

We should als o bear i n mind tha t no t al l the nondeceptive, non misleading advertising targeted to the poor encourages price competition amon g prescription drugs . Disproportionately, billboards an d other forms o f advertising aimed at poor neighborhood s push item s such as tobacco, alcohol, and the latest but soo n obsolet e versions of athletic appare l loosely , albeit expensively , associate d wit h a celebrated sport s figure. Whether th e uninhibited hawkin g of hundred dollar athletic shoes to the poor actually promotes their well-being is not beyond dispute , issues of paternalism an d condescensio n aside . The poor d o not exercis e perfect contro l over the nature of the com mercial messages to which they and their children ar e exposed daily . It may be difficul t no t t o be part o f a nearly "captive audience " fo r broad commercial themes, and the underlying message of consumptionism may, on balance, be socially harmful . As we have seen, the typical inability of consumption t o generat e lasting satisfaction amon g th e wider population ha s been variousl y diagnosed. When contemporar y writers discuss consumption-base d lifestyles, they typically return, with som e of the classi c writers an d the introspection s o f man y others , to idea s suc h a s self-defeat, th e "hedonic treadmill," being "trapped," or being "addicted." These an d similar idea s clearly do not reflec t condition s o f either happiness o r freedom. Whe n w e manag e t o d o wel l economically , w e typicall y rediscover Rousseau's insight that a short-lived sens e of gratificatio n gives way gradually to a n adjuste d leve l of expectatio n an d aspira tion, under whic h we take our prosperit y for grante d an d deriv e n o further happines s from ou r elevated status. If happiness for mos t of us turns out not to be a matter o f gettin g and spending, we can still appreciate some of the stronger correlate s of happiness. Culturally, we have not been able to advertise ourselve s out of the fact that happiness, or the lack thereof, is more affected b y matters suc h a s the nature an d characte r o f our work, leisure, basic

Commercial Speec h i n Contex t • 3 I

beliefs, and socia l relationships , including famil y an d friendships . Heredity may also play some role. These sources of satisfaction ofte n do not depen d o n th e market-based consumptio n o f goods and ser vices. Of course , neither socia l factors no r wealth an d consumptio n can dictate levels of happiness if, as is sometimes argued , our typica l range of happiness and unhappiness has biological limits. In a way, it is surprising that a society as pervasively commercialized as ours has not unwittingly deformed itsel f so as to become more sensitive to the pleasures of consumption an d less sensitive to those of , say, lifelong friendship . After all , a commercialized societ y would a t least superficiall y thriv e b y increasin g th e payoff s fo r th e option s toward which it steers its members and by reducing the payoffs fo r the options it marginalizes. Yet we still feel, at least vaguely and withou t prompting, th e imbalance s i n ou r lives . Of course , it i s no t i n ou r interest to be so consumed by consumption tha t we find unemploy ment, layoffs, or a lower income to be overwhelming, because this may also reflect nearl y inescapable differences betwee n consumptio n and , say, friendship o r stimulating work as sources of satisfaction. Although wealth an d incom e ma y be subject t o a law of diminishing returns , friendship o r stimulating work do not see m to fade a t the same rate, whether o r not we appreciate this difference. Th e positive effects o f a strengthened friendshi p d o not fad e i n the same way that thos e of a salary increase might. Our usua l experience seems to be that friend ship, work, o r leisur e doe s no t generat e entrapping , self-defeatin g "treadmills" analogous to those we experience with consumption . It is not eas y to measur e th e "quality" of work o r friendship , bu t we should no t us e measurement problem s t o rationaliz e awa y the basic message. We can asses s our friendship s an d famil y relation ships even if we have increasing difficulty imaginin g what deep, permanent friendship s migh t b e like. Incidentally, the evidenc e seem s clear tha t casua l visit s betwee n neighbors , famil y conversatio n

32 • Commercia l Speec h i n Contex t

beyond mer e interpersona l coordination , an d tim e spen t jointly a t family meal s all have diminished i n the United State s since midcen tury. No doubt these losses were in part the by-product o f healthy, or at leas t inescapable , cultura l an d economi c changes , includin g greater physical mobility. But their unintende d o r unexpected char acter and their connectio n wit h othe r socia l changes do not preven t their harmful effect s o n subjective well-being . Some of these social losses are compensated b y increases in othe r forms o f basic sociability that woul d otherwis e b e unavailable. An adult may spend less time with friends, neighbors, or family becaus e he or sh e has, perhaps for th e first time , obtained employmen t wit h an interestin g an d rewardin g socia l dimension. Thes e sorts o f jobs may more than mak e up fo r th e other sociabilit y losses involved. Of course, no t al l employment , whateve r th e incom e level , ha s thi s socially redeeming character . Why we remain o n th e hedonic treadmil l i s a complex questio n with man y partial answers. Most of us make large ongoing financial commitments, such as a mortgage o n a house. One fragmentary bu t plausible explanation i s that ou r short-ter m tim e horizons may play a role. Some relationships, creative work, and leisur e activities wit h enormous potentia l payoff s ove r tim e carr y a stif f pric e ove r th e short term . Nonetheless, we might b e better of f i n the long term i f we did commi t ourselve s t o doin g somethin g initiall y painful, lik e learning a foreign language , learning how to use a computer, or tak ing up the reading of music or a musical instrument. These activities are investments. Even if they are not unpleasant , they may be mor e uncomfortable a t first tha n i s some passive recreational activity . In that sense, they may require a short-term sacrifice . And this assume s that we have not alread y culturally deformed ourselve s to the poin t of losing our aptitud e for , o r eve n the long-term capacit y to enjoy , the activities in question .

Commercial Speec h i n Contex t • 3 3

There ar e other explanation s o f ou r inabilit y or unwillingnes s t o get off th e hedonic treadmill. We do not liv e in a culture that offer s neutral commercia l an d noncommercia l solution s t o life' s anom alies. If we did, we all could simply brush off, fo r example, contradictory cultural message s to ea t fast foo d an d b e fashionably thin . Fo r many persons, especially the young, such incompatible commercial ized message s ar e difficul t t o dismis s o r t o reconcile . If to o man y messages an d choice s concer n commercia l consumption , w e ma y simply not b e able to build a healthy identity or self-image no t tie d to commercial values. We should not deny , however, the beneficial effect s o f commercia l speech i n genera l o r o f commercia l advertisin g i n particular. Eve n though wealt h ma y b e inequitabl y distributed , ther e i s typicall y more of it in a commercial societ y in which suc h speech is screened only for frau d o r deception , narrowl y defined . Societ y as a whol e benefits, fo r example , not onl y from new s stories abou t a new dru g that provide s a unique an d saf e cur e fo r a serious diseas e but als o from accurat e commercial advertisements regarding that drug . Likewise, it would be difficult t o deny the adverse effects o n wages and employmen t i f many of us abruptly abandone d ou r customar y levels of consumption i n favor of communing with nature or writing poetry. The specter o f mass unemployment cause d by a burgeoning interest in poetry readings does not see m likely, however, and reduc ing the level of constitutional free speech protection fo r commercia l speech also does not seem likely to lead to such consequences. Those who find themselve s burdened b y excessive disposable incom e ma y wish, for example , to augmen t th e effectiv e marke t deman d o f th e poorest among us. For some persons, searching for an d selectin g consumer good s is itself utilit y enhancing . Indeed , w e ca n sometime s overcom e ou r sense o f socia l fragmentatio n no t throug h ou r increasingl y rar e

34 • Commercia l Speec h i n Contex t

common entertainments but through common ad campaigns. One way of coping with depression is to go shopping. Whether shopping amounts to a general solution to the problem of a lack of well-being is, however, doubtful. I n any event, we can go shopping under all sorts of commercial speech regimes, including those upholding any reasonable government regulation of even nondeceptive speech. More important , w e need no t endors e an y alleged distinctio n between natural, healthy, authentic, or uncontrived consumer needs and their opposites. At least for our culture, disentangling the natural from th e contrived or the artificially stimulated seems difficul t and perhaps even unrewarding. For instance, the desire to have an air conditioner may seem like a contrived, cultivated need until we go to live in a sweltering climate. It seems that most of our desires have some minimal basis in the vaguely natural, along with a complex overlay of the more or less contrived and arbitrary. That is, we do not have a solely natural need for clothing in the form of Armani suits, or for Armani suits as opposed to some other equally fashionable or steeply priced suits. We should not, however, stigmatize contrived or artificially induced desires and their gratification, even though there is something rather circular about a commercial culture's claiming to be able to fulfill th e particular form s o f desires that i t has itself largely cultivated. In a sense, it hardly matters how efficient a n arsonist is in putting out his own blaze. Our commercial culture accommodates our desire to, as it were, fillin the perceived holes in our lives. It sells us the shovels, and we buy them voluntarily. But it is also our commercial culture that has in large measure convinced us that the holes exist, that we ought to fill them, and that shovels are just the thing for that task. Once the culture of commercial speech becomes too pervasive, it turns into a closed, self-perpetuating, self-reinforcing, self-validatin g system. Choice becomes a choice among commercial alternatives,

Commercial Speec h i n Contex t • 3 5

often mor e alik e than dissimilar . Although thi s outcome reflect s th e logic of the marke t mor e tha n a conspiratorial plot , the resul t i s to impeach th e logi c of insisting o n stron g fre e speec h protection fo r commercial speech , given the broad value s or purposes underlyin g free speec h in the first place. If ou r response s t o truthfu l commercia l speec h ar e no t ofte n manipulated i n an y crud e o r narro w sens e bu t als o ar e no t reall y autonomous o r independen t o f ou r pervasiv e commercia l culture , why is such unregulate d speec h mor e consisten t with , say, the fre e speech value of autonom y tha n wit h th e regulatio n o f commercia l speech aime d a t enhancin g autonomy ? Som e people ma y suppos e that no regulatio n o f nondeceptive commercia l speec h can promot e autonomy. But i n a thoroughly commercialize d society , this argu ment begins to lose its plausibility, even if we assume, unrealistically, that we created our commercialized societ y freely and with complet e knowledge o f all its consequences. For example, a regulation requir ing cigarette s t o refe r t o diseas e o r th e likel y difficulty o f quittin g may b e sai d t o promote , a s muc h a s t o impair , th e autonom y o f potential consumers, if not of the cigarette sellers. Finally, we need not overestimate the power of commercial speech. Even when backe d b y the resource s an d visibilit y o f a McDonald s Corporation, the power o f commercial speec h campaigns is limited. Neither particular advertisements nor broader advertising campaign s are always effective, eve n when the y have been well researched an d well financed: th e majority o f prospective ne w brands tha t ar e test marketed ar e not markete d nationally . The battle of the marketplac e has many casualties. Even when advertisin g affect s behavior , the effect ma y be tempo rary. And when the effects ar e more enduring, they may amount onl y to switches among rival brands by established users, rather than ne w consumers for an y of the rival brands. Some advertising—conside r

36 • Commercia l Speec h i n Contex t

the various recen t plan s and pricin g claims of the leading long distance telephone carriers—i s widel y disliked. As a result, many ad s are simply drowned out , unnoticed o r unremembere d i n the ongo ing daily proliferation o f commercial speech . This conclusion doe s not mean, however, that commercial speech , or commercia l advertisin g mor e narrowly , does not hav e importan t long-term effects , intende d o r unintended, on American cultur e an d decision making . Commercial advertisin g i s in som e sens e a zerosum game , with on e product's gai n being another's loss. The prolif eration o f ads, however, does not lead simply to a process of mutua l conflict, let alone mutual annihilation . Commercial advertisement s tha t compet e o r conflic t a t one level may, a t a mor e basi c level , mutuall y reinforc e on e another . Suc h effects ma y not be intended o r even recognized. Consider that physical waves i n th e natura l worl d ma y interfer e wit h an d cance l on e another ou t i f they arriv e ou t o f phase but ma y als o reinforc e on e another, thereby heightening their impact, if they arrive in phase. Note, for example , that a n advertisemen t fo r a particular dru g is reinforced no t only by advertising and commercial speech in genera l and b y ad s fo r noncompetin g drugs , but eve n b y ad s fo r directl y competing drugs . An underlying messag e of such speech , explicit o r implicit, intended o r unintended, is that medical, psychological, an d even social problems ca n an d shoul d be addresse d by taking drugs . Competing dru g manufacturers agre e on the preferability o f drug to nondrug solution s to a remarkably wide range of problems. Indeed, a drug manufacturer wh o failed t o act on thi s belief would be invit ing a competitive disadvantage . This process of mutual reinforcemen t an d "generalization" seems to operat e whethe r i t i s intende d o r eve n recognize d b y anyone , including the audience. The sellers' state of mind i n this respect is of special interest. A seller who consciousl y intend s t o promote con -

Commercial Speec h i n Contex t • 3 7

sumptionism a s a style of life and who wishes to establish consump tion as the preferred solutio n to personal and social problems shoul d arouse some public concern. On the other hand, a seller who intend s no such message but onl y a narrower commercia l message less obviously or less deeply implicates th e values and purpose s underlyin g our desire to protect freedom o f speech. Thus even when a n ad fails to sell a product, it still may legitimize and suppor t commercia l consumptio n a s a wa y o f livin g an d o f addressing variou s sort s o f problems . Consumer s mus t rejec t o r ignore most of the ads to which they are exposed. But they may be less resistant to, if not gradually overwhelmed by, the predominance of the broader implied message touting commercialized consumption . That message cannot be reduced to what brand of what good to consume. The typical viewer, we are told, will have seen two million televi sion commercials by the time of his or her retirement. It is said tha t we will have devoted a full yea r an d a half o f our lifetim e t o watch ing commercials. 2 Wit h a figure o f thi s magnitude , i t ca n hardl y matter i f we do not absor b eac h commercial. Accordingly, commer cial sponsorship i s now increasingly interwoven int o programmin g and th e underlyin g televise d event . Even though w e may be ou t o f the roo m o r electronicall y suppres s man y o f the traditionall y dis tinct commercials , we should not e tha t man y children' s televisio n programs ar e themselves onl y thinly disguise d commercia l adver tisements pitche d t o a n audienc e whos e value s ar e no t ye t wel l formed. The forces seekin g to engender commercialize d value s are power ful. We are told that each day, 12 billion display ads, 2.5 million radi o ads, and 300,000 television commercials are generated. The formerl y largely commercial-fre e Interne t i s bein g opene d t o advertising . Commercial underwritin g announcement s o n publi c television ar e longer now. The proliferation o f ads has driven commercial sponsor s

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further afiel d int o many previously unsullied territories , in a collectively self-defeating attemp t to avoid ad clutter . This nea r ubiquit y o f commercia l speech—i n publi c parks , o n every expose d inc h o f sport s i n general , i n publi c schools , insid e spacecraft, o n clothing , on th e sides of rockets, on th e Internet, an d even projected ont o cathedrals—woul d no t b e so troubling were i t not fo r ou r culture' s lack of an y reasonably proportionate counter speech. Thi s disparit y i s enhance d b y th e political , noncommer cial—and henc e not subjec t t o regulation—speec h o f commercia l enterprises. Philip Morris and Seagrams , for example , promote thei r corporate interest s by means of commercial speec h as well as political speech an d politica l quas i speech, largely in the form o f massiv e contributions to , and lobbyin g of , bot h majo r politica l parties. But in ou r culture , no establishe d institutio n currentl y devote s muc h energy or resource s to providing a proportionate counterspeec h fo r the broad implicit messages of our commercialized culture . Some element s o f many cultural institution s spea k agains t con sumption-oriented style s of life. But even their message is mixed an d is overridden by the larger culture. Public television and public radi o are increasingly dependen t o n commercia l messages . Even thoug h universities are traditionally skeptical of commercialism, they do no t wish, for a number o f reasons, to oppose it unequivocally. University courses' content, grading, and selectio n policies have an increasingl y commercial favor . Most mainstream environmentalist s attac k waste in consumption o r seek to ensure that resource s will be available fo r future consumption . Few dissiden t religiou s o r politica l movement s i n th e Unite d States actively and explicitl y target consumptionism . Furthermore , any local religious leader who speak s out agains t excessiv e commer cialization may offend o r annoy all those whose livelihood depend s on commercial sales. Ultimately, financial donation s to church insti tutions, programs, and charities must derive from commerce .

Commercial Speec h i n Contex t • 3 9

Churches and othe r religious institutions may decry the commer cialization o f variou s religiou s holiday s an d sometime s expres s broader concerns . But protestations agains t the commercializatio n of Christmas are , by now, harmless an d ineffective . Indeed , the phe nomenon o f th e commercializatio n o f Christma s ha s becom e s o familiar tha t i t is now beginning, paradoxically, to raise new issues. We are , fo r example , unsur e ho w fa r th e commercializatio n o f Christmas ca n g o without becomin g self-destructive . Conside r th e analogy to a parasitic organis m an d it s biological host. The parasit e wants to thrive relativ e to, or a t the expens e of , th e host. But if th e parasite draws too much energy and resources from th e host, or oth erwise weakens it, the parasite itself may suffer . Ironically, th e commercializatio n o f Christma s ha s prospere d while draining the holiday of religious meaning. It is unclear, how ever, ho w fa r thi s proces s ca n continu e withou t commerc e itsel f beginning to suffer. We have become willing to overspend in connection wit h a holiday. But if Christmas become s solel y a commercia l event, would tha t reall y be goo d fo r commerce ? What i f the seaso n evolved into a freestanding cultura l imperative t o feel generous an d mildly euphoric? Would that be enough to sustain the compulsion t o overspend on gifts ? There has never been a close logical connection between the message of peace o n eart h an d shoppin g til l you drop . Once the sens e that th e Christma s seaso n i s special is gone, why should w e all par ticipate, with undiminishe d enthusiasm , in the often-unappreciate d consumptionist frenzy ? Perhap s there i s a point a t which th e com mercialization o f Christmas wil l begin t o limit it s own expansion , but we do not seem to have reached it yet. It will be interesting to see how the celebratio n o f Kwanzaa fare s in thi s regard. From th e beginning, the founder s o f Kwanza a hav e repeatedly emphasize d it s noncommercial character . Can thi s con tinue? Or will Kwanzaa be gradually changed through commercializa -

40 • Commercia l Speec h i n Contex t

tion, with the only issue being who profits from the commercializatio n process? Parenthetically, we should not e tha t th e commercia l parasitism biological hos t issu e does not aris e only in the contex t o f religiou s holidays. The evidence is as yet unclear, but one can easily argue that from th e standpoin t o f the athleti c contest , commercial influence s on various professional an d college sports have become so repellant , distorted, an d arbitrar y tha t ther e ma y soo n b e les s mone y t o b e made i n this area. Beyond som e point, it may be difficult t o under mine th e spor t withou t underminin g th e desir e t o spen d mone y related in some way to that sport . Families typically do not sel l goods and service s within the famil y unit. Bu t parents ca n i n various ways transmit commercia l values , just a s they can an d ofte n d o reinforce noncommercia l values . Most people do not spen d mos t o f their da y doing this; rather, they bring their socialize d commercia l values to the family, thus commercializ ing the family itself. The current and foreseeable futur e balance of cultural institutiona l forces thus seems reasonably clear, based not s o much o n the forma l gathering of evidence as on a casual observation o f the common cul ture. Many defenders o f stron g constitutiona l protectio n fo r com mercial speec h woul d no t den y th e pervasivenes s o f commercia l speech. Fewer people accept the stronger clai m that genuine freedom of speech requires at least a rough equalit y of resources among con tending forces. But all that we need to acknowledge here is that in our current circumstances , no single cultural institution o r set of institu tions is both abl e and incline d t o provide an y substantial "counter vailing" speec h t o offse t th e broad , reinforced , intended , o r unintended influence s o f commercial speech . A "bias"—in th e sense of a distinct, significant vecto r of cultural forces—toward som e for m of consumption o f commercial goods and services is characteristic of

Commercial Speec h i n Contex t • 4 1

our society . Some persons are , for variou s reasons , less affected b y this cultura l bias than others . This would b e true, however, of eve n the most dominant cultura l tendencies in any society. This stat e o f affair s i s no t th e outcom e o f a struggl e betwee n opposing camps . We live in a highly commercialized society , which may or ma y not reflec t th e actua l desire s o f the major commercia l speakers. In thi s respect , there ma y be a gap between th e desire s o f the commercial speaker s and the effects o f their commercia l speech . Commercial speaker s intend an d welcome the eventua l purchase o f whatever goo d o r servic e they are trying t o sell , and the y may no t deny similar opportunitie s t o other commercia l speakers . But in th e extreme case, the collective result o f all this commercial speec h ma y not be desired or intended by any commercial speaker . This is not a complex argument. Presumably, no one sheep herde r wants everyone' s sheep , collectively, t o overgraz e an d destro y th e commons. But a sheep herder a s an individual ma y find tha t i t doe s not pay to make alternative arrangements. Likewise, farmers a s individuals may find tha t allowing their pesticides to wash into the com mon strea m i s th e bes t solution . N o individua l farmer , w e ma y assume, contributes enoug h pesticide s to the stream t o significantl y impair th e water's quality. If every farmer follow s thi s logic, though, the stream ma y become dangerousl y polluted. The interesting poin t is that thi s outcom e ma y not hav e been intende d b y all, or eve n b y any, of the farmers, even if they all foresaw the aggregate result . Similarly, we could imagin e that some , if not all , major commer cial speakers face a conflict betwee n thei r preference s fo r thei r ow n enterprises an d thei r preference s fo r th e direction an d characte r o f their society . Each commercial speake r ma y believe that i f she doe s not spea k fo r he r produc t wheneve r an d whereve r he r individua l advantage dictates , her produc t ma y eventually fail in the competi tion o f the market . Others, after all , are currently touting product s

42 • Commercia l Speec h in Context

that ca n be readily substituted fo r hers . The logic of the market ma y thus require her to speak commercially . From this argument, though, we cannot infe r tha t sh e wishes, for herself o r for futur e generations , to live in the culture that will result from al l commercial speakers ' following a similar marke t logic . In the extreme, no commercia l speake r may wish such a collective out come. Eac h commercia l speake r may , without an y inconsistency , wish both t o promote he r particular produc t an d to live in a culture less commercialized tha n our own . To avoid misunderstanding, we should specify that a culture of consumption nee d no t be biased toward what Veblen called conspicuous consumption. That is, it does not have to be biased toward consumin g the most ostentatiou s o r most expensiv e goods . Instead, we shoul d expect fluctuation s i n society' s consumptio n pattern s ove r time, in which the emphasis switche s from th e exotic to the plain an d func tional and back again, in accordance with fashion an d economics. Let u s conside r a n interestin g objection , base d o n a n analog y between economic s an d politics . On e migh t clai m tha t a paralle l argument coul d be made for the political sphere, particularly for th e competing electora l candidacie s o f opposin g partie s o r ideologies . Don't competin g electora l candidacies , like some physical waves o r most commercia l speech , tend, at least unintentionally, to reinforc e certain basic, shared political themes s o as to "bias" public thinkin g in ways not challenge d by other institutions ? I f so, isn't there a case for political reform o r regulation to limit these biasing effects ? A debate continuall y dominate d b y a range o f simila r ideologie s may tend, intentionally or unintentionally, to delegitimize our othe r political options. How to respond to this possibility so as to promot e the underlying logic of democracy is a crucial question. But because the cultures of electoral politics and the commercial market ar e different, it is a question that we will not answer here.

Commercial Speec h i n Contex t • 4 3

Most commercial advertising in all media does not refer invidi ously to, let alone focus on, a competitor's good or service. When ads do mak e comparisons , they ofte n d o s o with a light touch , onl y rarely implying that a competitor's product or service is in any sense unworthy, shoddy, or dangerous. Parenthetically, we might note that some of the major player s in the long distance telephone servic e market have come close to "negative" commercial advertisements. Not surprisingly, the viewers' responses to these sorts of commercials have been unsympathetic. Accordingly, the content and tone of some of the more recent ads then shifted in a positive direction. Perhaps the telephone carriers' behavior started with the market dominance at the time by a few competitors, combined with a sense that most viewers would choose from amon g those few competitors and be unlikely to reduce the volume of their long distance calls, whatever their reaction to the advertising. More typically, though, matters stan d a s they did decade s ago, when the advertising pioneer Claude Hopkins observed in Scientific Advertising that i t simply does not pay to knock the competitor' s product. It is fair to say, however, that this practice is not as regularly observed in electoral politics. In American politics, invidious comparisons are common. The precise effects o f "negative " or "attack" ads in political campaigns are complex and difficult to track, but there is little doubt that generally they repel the public. Such ads contribute to voter disenchantment, apathy, cynicism, and a low turnout o n election day . Many attack ads convey the idea that one's electoral opponent is unworthy of office, whereas most commercial ads, including most comparative ads, do not suggest, by analogy, that one is better off doing without than buying the competitor's product. Overall, electoral speech by competing candidates is not as mutually reinforcing as in the case of competing commercial ads. In some

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ways, the lack of parallelism i s easily understandable. Pepsi's goal is not to sell more sodas than Coc a Cola does, whatever the dollar volume involved. Even if Coca Cola is by far the market leader, it cannot be happy with outsellin g its rivals, but a t low volumes. For electora l candidates, o n th e othe r hand , th e analogou s outcom e ma y b e acceptable; indeed, winning o n th e basis of a n abysmall y low voter turnout ma y be deemed a success. The nearly exclusive expositio n o f the mainstream politica l ide ologies makes an y alternative see m unrealisti c i f not inconceivable . This is a central problem fo r democrati c theory , but on e that nee d not be resolved here if we accept one of two views: First, mainstream political speech delegitimize s som e or al l non-mainstream politica l speech, an d i n th e nam e o f democracy , w e shoul d d o somethin g about this. Or second, there is a difference i n the ways in which com mercial speech marginalizes noncommercial speec h an d the ways in which mainstrea m politica l speec h marginalize s non-mainstrea m political speech, and these differences justif y regulatio n o f commer cial speech that would be unacceptable in political speech. Many advertisement s ca n b e describe d a s propositional. Fo r instance, a full-pag e newspape r a d fo r a particular grocer y stor e chain feature s a particular bran d o f pork an d bean s a t a particula r volume an d price . Although no t al l commercial ad s ar e based o n this model, most hav e some similarities. But advertising has under gone som e noticeabl e qualitativ e change s ove r time . Som e ads , including many of the most prominent, are now largely imagistic or atmospheric, seekin g only to creat e a mood. Som e may attempt t o link a product wit h a celebrity, an appealin g noncelebrity, or eve n a not particularly appealing but somehow interestingly depicted non celebrity. No proposition, promise, or representation i s expressed o r implied.

Commercial Speec h i n Contex t • 4 5

Such ad s ar e neithe r tru e no r false , a t leas t no t i n an y narro w sense. They are not descriptiv e o r misleadin g i n an y similarly nar row, traditional sense. In fact, they may attempt to leave the true an d false behind rathe r than embrac e falsehood . To the exten t that freedo m o f speec h i s a matter o f seeking som e propositional truth , eve n o f a commercial sort , protecting ad s tha t do not implicat e truth o r falsit y is , in this respect, misguided. Man y ads do not follow this model, and even the most vaguely imagistic ad can be misleading. The seller always believes that a t least some of u s should eventuall y buy the touted product , o r a related one , that th e product will somehow redeem itself to us as consumers, and, in par ticular, that buying, using, displaying, or even just thinking about o r being associated with the product will make the consumer better off . In some cases, it is the commercial itself or its ambience that is the real product . Sometime s reference s t o earlie r commercial s ar e emphasized. The more tangible product a t the store is secondary. In addition, the multimedia a d campaigns, and no t th e entertainmen t programs, may cross group barriers. In the era of digital television, we will be linked no t b y the commo n viewin g o f the Ed Sullivan Show but b y th e ne w McDonald s o r Peps i campaigns . Th e produc t i s a reminder o r a claim o f associatio n wit h th e commercial . Bu t eve n though thi s kind o f analysis can be illuminating, it has limitations . The marke t require s tha t mor e tha n th e commercia l itsel f b e con sumed. Consuming the commercial itsel f is a choice and has oppor tunity costs. Consuming the commercial may have various intangibl e good consequence s fo r th e sponsor. But our consumin g these com mercials doe s not , b y itself , lin e th e pocket s o f thei r producers . Rather, we must eventuall y buy something associate d with the com mercial, or else the producer o f the commercials cannot survive. For our purposes, it really does not matter whether consumers ar e said to consume the commercial o r the underlying product, as there

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is always the implicit claim that the product, if not the commercial itself, will justify the outcome. If the advertiser is trying to change the consumer's tastes or standards, he will appeal to those consumer standards. At least up to this point, even the most exotic commercial implies that the consumer will not get a raw deal, based on those standards. What is usually foremost in consumers' minds are matters such as their happiness and well-being, which are, however, standards that a culture of consumption may fail. Even if commercials or the act of consumption mad e us happy according to our own standards, we would still wonder whether such happiness came at a price in freedom. Certainly, we cannot dispute the superiorit y o f a well-stocked America n supermarke t ove r a shortage-ridden, Soviet-style food emporium. But increasingly, there is a danger of confusing a diversity of choice among market goods and services with freedom itself , in the form o f a diversity in basic ways of living and thinking. Being able to choose among brands and products is a poor sort of freedom if our culture prevents us, realistically if not formally, from seriousl y considering less consumptionoriented ways of living. More particularly, if we participate in consumption fad s simply on the basis of their popularity or of a "bandwagon" effect, we are not choosing autonomously. We may instead be trading our autonomy for subjective enjoyment, reassurance, or a sense of community. But this sort of faddish consumptio n community, however tempting, falls short of the deeper, worthier, more stable community we may really be seeking. In a culture in which consumption is dominant and only occasionally challenged, commercial speech may well change our basic tastes, capacities, and judgments in ways that we do not even recognize, let alone anticipate. This can be a freedom-destroying process . Some of these changes, such as expecting more rigorous standards

Commercial Speec h i n Contex t • 4 7

for produc t warranties , may be benign. Other changes , including a loss or stuntin g o f ou r capacitie s t o value, enjoy, o r eve n envisio n nonmarket solution s to problems, are not. To claim that a "free market " in nondeceptive commercia l speec h makes us freer raise s serious problems of measurement an d commen surability. Why are we supposed t o be unequivocally freer i f we have lost our range of options, however much well-being they might hav e afforded o r still be capable of affording? Wh y are we unequivocall y freer if our sense of what is desirable and feasible readily matches what commercial markets can easily supply? Wh y must a democratic society interpret its constitutional guarantees of freedom t o confirm thes e largely unintended, unconscious, and often unrecognize d effects ? Our freedo m woul d als o b e diminishe d i f we lived i n a cultur e that uniforml y disdaine d consumptionis t lifestyles . According to th e evidence, even though we might well be happier in such a culture, we would have lost the optio n o f pursuing happiness , however ineffec tively, by getting an d spending . Our freedo m woul d be maximized , in this respect, only where both consumptionis t lifestyle s an d thei r counterparts ha d los t thei r dominance . Bu t ou r cultur e doe s no t now offer thi s degree of openness and neutrality . Think of a typical consumer good—hamburgers . The interests of both th e producers an d the consumers may be served by expandin g the market an d economie s o f scale if the variety of consumer taste s can firs t b e modifie d i n th e directio n o f som e les s diverse , mor e nearly homogeneou s commo n denominator . I f thi s ca n b e done , restaurant expenses and prices will fall, and consumers will not objec t to th e homogenization t o th e degre e that thei r taste s have actuall y been changed . Indeed, such consumers will see themselves as simply benefiting from certai n assembly line-style cost efficiencies . Currently, the world's mos t popula r hamburger—a s judge d b y volume sold, if not by taste test—arrives with a number o f standar d

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"default" choice s alread y made . Som e consumers , throug h eithe r advance specification o r manual deconstruction , ma y try to modif y those defaul t choices . The cos t o f advanc e specificatio n ma y be a longer wait for their hamburger, and the cost of manual deconstruc tion ma y be unpleasantness o r mil d socia l disapproval . Some cus tomers may even go elsewhere—after all, it is impractical to chang e the taste of the basic burger itself, and some other burger chains may offer hamburger s tha t cos t nearly the sam e an d tha t ar e sometime s rated better tasting by many adults, if not by children. All this consumer assertivenes s is healthy in a cultural, if not i n a nutritional, sense. But it is not th e whole story . To some extent , we resign ourselve s to eating hamburgers tha t d o not reall y match ou r preferences; w e simply accept the m a s good enoug h t o be paid fo r and eaten. More insidiously, though, another process may be at work, involving dissonanc e reduction , habituation, maturation, o r a culinary Stockhol m syndrome . In an y event, our taste s ar e changed — gradually, unintentionally, and perhaps without our awareness. Our taste s chang e fo r man y reasons . We may decid e t o becom e vegetarian. O r w e ma y hav e eate n s o man y hamburger s tha t the y have lost their appeal , temporarily o r permanently. Our tast e for fa t and sal t depends o n what we are used to . Certain foo d items—on e thinks her e o f item s suc h a s the Klingons ' gagh—would no t likel y become favorite s o f mos t fast-foo d devotees , eve n afte r repeate d exposure. But the phenomenon o f taste adjustment throug h habitu ation is real. We may come to find that our initia l tastes are now for eign to us and no longer appealing . Again, habituation ma y drive down costs , enhance a t least som e competitors' profits, an d dra w no objectio n fro m consumers . Afte r all, a change i n tastes i n thi s context mean s tha t w e have someho w come t o prefe r wha t i s offered . Ther e nee d b e nothin g narrowl y deceptive o r coerciv e abou t thi s process, in tha t n o litera l forc e o r

Commercial Speec h i n Contex t • 4 9

fraud i s applied. And of course, fast food i s not the only example an d probably not the most extreme one. To put i t mor e dramatically , ou r experience s an d tast e historie s can, to a degree, undermine ou r freedom. Consider , for example, that in our culture , jazz and classica l music are relatively unpopular. Thi s fact is obscured by their residual prestige and the affluence o f many of their aficionados , bu t thei r limite d appea l i s easily documented. I t seems evident tha t i t is not a matter o f their intrinsi c inferiorit y a s musical genres. Rather, their unpopularit y i s better explaine d o n th e basis of our generall y infrequent exposur e t o them a s children an d young adults , apart fro m thei r unidentified , unpursuable , snippet like incorporation int o movies and commercials. It is, of course, more complicated than that. Jazz and classical music are relatively complex and may be perceived as odd or different. Understandin g them therefore require s mor e initia l effort—eve n discomfort—an d a bigge r investment tha n d o mor e popular form s o f music. As a culture, we currently may be less inclined to make that initial investment, even if it would pay off over our lifetime . This is precisely the point, that most adult s do not g o through lif e regretting their tastes in music or wishing that jazz or classical music meant more to them. The preferences o f those adults for whom thes e forms of music have always been at the margins were not violated an d overridden by some external agency. But we should not conclude that this sort of taste formation an d reinforcement proces s in our cultur e maximizes freedom. Perhap s all choice histories influence ou r futur e choices. Perhaps all expressed preferences ar e fed back to us, changing our basic tastes and our very identity to some degree. All choices have costs, and perhaps all choices preclude certain possibilities. Freedom, however, is achieved to different degree s in different cultures . Freedom i n genera l and freedo m o f speech ar e not equivalent , s o we cannot develo p a theory of free speech by focusing exclusivel y on

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freedom i n the broader sense . It is hard to believe, though, that we could be satisfied wit h a freedom o f speech that constrain s freedo m in the broader sense . The idea of promoting self-realizatio n o r selffulfillment i s commonly cited as one of the goals or values underlying freedom o f speech. It also is quite natural to see something like selfrealization o r human fulfillmen t a s central to why we value freedo m more broadly. John Stuart Mill, for example, argued in just this way. So even when we set aside all cases of false or deceptive commer cial speech, it is far from clea r that freedo m i n general or the values underlying freedo m o f speech are maximized by stringent constitu tional protectio n fo r commercial speech . Ultimately, what tip s the balance is a realistic assessment o f the vector o f institutional force s and the absence of any substantial, institutionally based challenge to the dominanc e o f the culture o f consumptionism. Any reasonable governmental restrictio n place d on commercial speec h may be said to reduce—if onl y symbolically or minimally—the cultura l bias in favor o f consumptionist way s of living. Reasonable people may disagree, but we do not need t o prove thi s claim . Rather, the issue is whether the courts should overrule democratic decision making that places reasonable restriction s o n commercial speech , in the absence of other legal issues. Our claim is not that those democratic decisio n makers are right to act as they do because our theory can be proved to b e correct. Instead , w e need onl y argu e tha t i n suc h cases , the courts shoul d generall y defe r t o reasonable democrati c decision s based on plausible theories. Some commercial interests seek to capture and use the democratic political process to promote their own selfish end s by restricting the commercial speech of others. One gasoline retailer, for example, may benefit i f no competitors are allowed to advertise. But such acts may, on balance , undermin e th e publi c interest . Therefore , th e court s should be able to reject suc h schemes simply as being unreasonable .

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Other federa l o r stat e constitutiona l o r othe r lega l challenges , including civi l rights or antitrus t claims , may be used i n suc h cases. But remember tha t alon g with the general public, the victim in suc h cases is another competin g commercia l faction . Neithe r victim i s a historically despised, powerless minority , with n o chanc e o f influ encing th e democrati c process . Although i t ma y b e to o costl y o r impractical fo r th e public to ris e up i n organize d electora l o r lega l protest against such schemes, the public interest can often b e uphel d by the better-organized commercia l victim s o f unreasonable , anti competitive restrictions on commercial speech . What sort s o f value s o r purposes , then , underli e freedo m o f speech? Thi s questio n ha s ofte n bee n a t the hear t o f dispute s ove r commercial speech . The leading modern fre e speec h theorist , Joh n Stuart Mill, was ambivalent abou t the degree of protection, if any, to be accorde d t o som e form s o f nondeceptiv e commercia l speech . Contemporary writers, though perhap s not ambivalen t a s individu als, are at least divided on the subject . One broad an d influentia l cam p favor s som e degree of special o r rigorous Firs t Amendment protectio n fo r commercia l speech . Writers in this camp recognize that many commercial ads are less propositional tha n vaguel y imagisti c o r moo d evocative . The y note , however, that suc h ad s may intentionally or , more often , uninten tionally promote recognizable styles of life, such as materialism, consumptionism, o r short-ter m hedonism , a s indee d full y protecte d noncommercial speec h might . Other ads , of course, clearly conve y information o f great interest to many people, and some ads have evident artistic value. The failure t o protect commercia l speec h migh t eve n be danger ous. As long as there is a significant differenc e i n the level of consti tutional protectio n accorde d t o commercia l an d noncommercia l speech, including politica l speech , there i s a risk that governmen t

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and th e court s migh t succee d i n classifyin g politica l o r ideologica l speech a s mer e commercia l speech . Thi s misclassificatio n migh t then be used to suppress unpopular political or ideological speech . In contrast , anothe r grou p o f writer s i s mor e skeptica l o f th e desirability of special protection fo r commercia l speech. They sometimes argue that suc h protection ma y actually endanger, rather tha n strengthen, political and ideological speech. If we offer equa l protection to commercial an d noncommercial speech , we will risk dilutin g free speec h protection fo r politica l speech if we are repeatedly aske d to appl y stringent fre e speec h protectio n fo r venal , mundane, self interested, o r trivia l commercia l purposes . The thinking i s that w e might be willing to fight and die for free speech in certain realms but not i n others . Other peopl e conten d tha t commercia l speec h ordi narily generates fewer "external" benefits that go "uncaptured" by the speaker tha n doe s politica l o r ideologica l speech . Bu t then , a s we noted, commercial speec h may create the important externalit y of a culture of consumption . The battle between thes e two camps is typically played out , albei t inconclusively, over the relationship between commercial speech an d one or more of the values and purposes thought t o underlie the fre e speech clause . Unfortunately, ther e currently is no consensu s o n th e range or scop e of these values. Some judges and writers cite a broad range o f values , other s a narrower one , difference s tha t ofte n ar e translated int o disagreement s ove r the constitutional statu s of com mercial speech. Those who recognize a broad rang e of values under lying freedom o f speech accor d greate r constitutiona l protectio n t o commercial speech, and those who recognize only a narrow range of free speec h values give it less protection. This sor t o f persistent , apparentl y unresolvable , controvers y i s paralleled by a narrower debat e over the relationship between com mercial speec h an d th e mor e particula r valu e o f self-realization .

Commercial Speec h i n Contex t • 5 3

Some writers believe that commercia l speec h encourage s self-real ization, whereas others are more skeptical. The debate remains unre solved largel y becaus e o f th e intractabl e ambiguit y surroundin g terms such as self-realization, self-expression, and autonomy. Roughly , self-realization—in th e sense of actin g as one currently happens t o wish to d o with regar d t o receivin g commercia l messages—i s pro moted, at least at that moment , by uninhibited commercia l speech . But this is not the only familiar wa y of thinking o f self-realization. If we think of it instead in terms of human dignity , the fullest an d rich est development o f human powers , or the highest developmen t an d flourishing o f the human personality , the connectio n betwee n gen erally unregulated commercia l speec h an d suc h self-realization wil l seem much mor e tenuous. Whether generall y unregulated commer cial speech promote s self-realizatio n i n a third sense—tha t o f sub jective happiness o r well-being—also i s controversial. As we hav e seen, the available evidence suggests that it does not. As a practical matter, if we want to make a case for the reasonabl e regulation o f commercial speech , we will gain little by adopting nar row or controversial theories of free speech. We should not, if only for reasons o f persuasion, assume that fre e speec h theory should focu s only on, for example , the freedom o f the speaker an d no t o n that o f the audience. Nor shoul d we assume that eve n as speakers, corpora tions (o r some carefully define d subse t o f corporations) fal l outsid e the scope of the free speech clause. Even if for-profit corporation s ar e constrained, in some sense, by the need to turn a profit, this does not tightly constrain the content or tone of commercial speech consisten t with the corporation's survival . Benetton, Nike, Coors, Pepsi, Calvin Klein, Boeing, Cadillac, McDonald's, Ben & Jerry's, and Exxon mayb e subject to profitability constraints , but these constraints are compatible with interestin g difference s i n their advertisin g messages. Profit constrained enterprise s enjo y a meaningful zon e o f indeterminac y

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within which the tone and content of their speech, as determined by one or more human agents of the corporation, may safely fall. Our approach, in contrast, is to endorse a broad range of values or purposes underlying the free speech clause. The idea is to avoid limiting constitutiona l protectio n fo r commercia l speec h o n th e grounds o f a narrow, crabbed, or controversial understandin g o f why we protect free speech in the first place. Let us turn to the problem of distinguishing between commercia l and noncommercial speech. Up to this point, we have set aside this question, relying when necessary on uncontroversial examples . A precise and easily applied definition is not possible. But we need not throw up our hands in despair, concluding that we will not be able to tell commercial an d noncommercial speec h apart—which migh t lead to stringent protection for both or, less attractively, to less stringent protectio n fo r politica l speech . Instead , w e hav e reaso n t o believe that the vague borders of commercial speech need not lead to implausible or harmful judicial results. In this respect, the Supreme Court has been of limited assistance. The leading commercial speech case, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, referred to commercial speech as "speech which does 'no more than propose a commercial transaction.' "3 O n the other hand, the Court also, in the influential case of Central Hudson Gas and Electric Corp. v. Public Service Commission, referred to "expression related solely to the economic interests of the speaker and its audience."4 If both these formulas are intended to be definitions o f commercial speech , the firs t thin g w e should notic e i s that the y may be inconsistent with each other. Separately, neither is very satisfactory. Consider first the "no more than propose a commercial transaction" approach. The problem here is that much commercial speech does

Commercial Speec h i n Contex t • 5 5

more than , o r somethin g differen t from , proposin g a commercia l transaction. I s speech that accept s or reject s a commercial proposa l usually itself a commercial proposal? We also should be a bit nervou s that thi s assume d definitio n o f commercia l speec h itsel f relie s on , without furthe r specifying , the idea of "commercial." If our proble m i s distinguishing th e commercia l fro m th e non commercial, this definition is , by itself, of limited help , but th e tas k of distinguishing th e commercia l fro m th e noncommercia l canno t be avoide d forever . Eve n i f w e abando n thi s distinctio n i n free speech cases , we will have t o mak e a similar distinctio n fo r com merce claus e purposes, unles s we consider everythin g t o be com merce. And if we regard all possible human relation s as commercial, we have lost already . This first definitio n o f commercial speec h is helpful i n some con texts, however. It may often b e used i n case s of, fo r example , com mercial advertising , securitie s offerings , an d structurall y simila r cases. But other intuitivel y commercial forms o f speech often d o no t fit neatly into th e categor y of proposals. For example , many prox y statements, SEC filings, security interest filings, corporat e financial statements, reports to shareholders, commercial contracts , account ing or budget reports, product safety brochures, warranties, prospectuses, produc t labels , consume r warnings , an d produc t recal l statements are not considered to be proposals. The alternative, the "solely economic interests" approach to defin ing commercial speech , has faults a s well. It does have the virtue o f including som e instance s o f commercia l speec h beyond mer e pro posals, but i t leaves out much tha t is ordinarily considered commer cial speech . Imagin e a typica l commercia l advertisemen t fo r a perfume, a n elaborat e exercis e machine , a hair replacemen t tech nique, cigarettes, or athleti c shoes . These an d simila r ad s may well relate to the economic interest s of the consumers a s well as to thos e

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of the sellers . Far more i s at stake, however, than "solely" economic interests in the purchase o f these and man y other product s an d ser vices. Self-improvement, relationships , mood, image , and fantas y may be crucial elements as well. It is easy to conclude that both thes e definitions o f commercial speech are in some respects less than ideal. But no simple and satisfactory alternativ e definition i s available. Consider th e distinctio n betwee n th e marke t fo r good s and ser vices and the metaphorical "market" for ideas. Of course, we only figuratively buy an d sel l ideas. Buying a n ide a nee d no t leav e us wit h fewer resource s with whic h t o "buy" more ideas , even i f buying a n idea involves commitments and has opportunity costs. Selling an idea does not reduce the seller's supply of ideas, or even of that idea. What the seller receives in exchange for th e idea, if there is an exchang e a t all, is often hazy. Legal rights in ideas—beyond copyright , patent, and trademark—are themselve s hazy. Often, a s with political or ideological ideas , th e seller' s goa l seem s merel y t o disseminat e th e ide a rapidly, aside from th e pric e o r rat e o f return . Authors o f politica l books occasionall y seek royalties from thei r publishers. But royalt y payments are, in many cases, not amon g the author's primary inter ests or motivations. In other cases, determining the profit motivatio n or other personal interest is simply impractical. Nevertheless, the contrast between markets for goods and market s for idea s is useful i n certai n respects . Again, we cannot, for variou s reasons, simply disregard the distinctio n betwee n th e more an d th e less commercial, so that bein g a samurai an d sellin g a Samurai ar e deemed equall y commercial activities . We need t o be reminded, i n particular, that ofte n speec h about markets, or even about a particular market, an d abou t how , if at all , such a market shoul d b e regu lated, clearly transcends commercial speech . Commercial speec h may not have a unique, distinct essence . Perhaps the only thing that links all instances of recognizably commercial

Commercial Speec h I n Contex t • 5 7

speech i s a serie s o f "famil y resemblances. " We hav e see n tha t w e should be reluctant t o dispos e o f the distinctio n betwee n th e com mercial and the noncommercial, in this or other constitutiona l con texts. Bu t a pragmati c counterargumen t i s possible . Suppose , th e argument goes , we draw some reasonable distinctio n betwee n com mercial and noncommercia l speech . This distinction woul d mak e a difference onl y if we allowed the government to regulate the two categories differently. I t is common to distrust the government's ability to regulate political or ideological speech on the grounds of the speech's alleged harmfulness. Th e particular are a of hate speech regulation i s more controversial, but the general idea is familiar enough . But why, the argument concludes , should we imagine that government regula tion o f commercia l speec h wil l b e fairer , les s biased, o r otherwis e more defensible? Why shouldn't skepticis m abou t governmen t regu lation of political speech extend into the realm of commercial speech? If it does, fussing ove r the distinction between commercia l and non commercial speech might lose much of its point. This argument, however, is not convincing . No doubt , as we have seen, some government regulation of commercial speech is driven by an industry's o r a n enterprise' s desir e to restrict th e entry of poten tial competitors, by a wish to discriminate unjustly , o r by other anti competitive motivations . This i s not th e whole story , however. We should not be as distrustful o f a government's ability to regulate rea sonably all commercial speec h a s of it s ability to regulat e fairl y th e speech o f th e government' s ow n riva l politica l parties , politica l movements, and political ideologies. Whether cigarette s caus e a particular diseas e is, in som e cases , a complex and controversial issue. Judgment is often required . But this sort o f question ma y well be more objectivel y determinat e than , fo r example, whether a particular politica l candidate, party, or ideolog y is socially pernicious an d shoul d therefor e b e regulated. The sittin g

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government ma y indeed hold certai n biases on commercia l matters . Some of, if not all, the affected partie s may offer campaig n contribu tions. But these biases must—according t o commo n sens e and th e writers o f ou r Constitution—pal e i n compariso n t o th e govern ment's biases regarding it s own merits . On th e on e hand , in man y commercial controversies , th e leadin g governmenta l actor s ma y have, at most, a limited stake in the outcome. But on the other hand , few government s full y appreciat e criticis m o f thei r policie s o r o f their very existence as governments. Let us state our position in a somewhat less familiar an d somewha t narrower way . It i s plausible t o hold tha t i n som e cases , we shoul d protect unpopular and perhaps even arguably dangerous ideas—per haps for the sake of promoting the public virtue of tolerance. In con trast, few people would conten d that we are better of f protecting th e advertising of potentially dangerous products. This contention woul d not chang e eve n i f w e added , i n th e latte r case , the availabilit y o f counterspeech b y Consumer Reports, the availability of the civil tort system, and th e possibility o f criminalizing th e production o f suc h goods to minimize the carnage. Nor would ou r conclusio n chang e if we focused o n the harms of nondeceptive commercial speech . We are not tryin g to minimize th e potential fo r abus e of the government's power to regulate commercial speech . But such abuse ca n be reduced b y means othe r tha n rigorousl y protecting commercia l speech. Virtually al l criticism o f attempt s t o limi t competitio n b y regulating commercia l speec h i s itsel f full y protecte d politica l speech. Indeed, some attempts to restrict competitio n b y restrictin g commercial speech might fail a judicial test of reasonableness . More important, we should remembe r tha t a private party that is able to persuade the government t o limit competitio n b y regulatin g speech may well be able to achieve similar anticompetitive effect s b y means other than restricting speech. A private party that sees it cannot

Commercial Speec h I n Contex t • 5 9

restrict competition throug h speec h regulation i s unlikely to give up, and it has no practical reason to do so. Many ways of limiting competition through legislation do not direcdy involve commercial speech . Finally, let u s recall that historicall y th e mos t egregiou s restric tions o n competitio n hav e often include d consciou s discriminatio n on the basis of race, ethnicity, and other group affiliation. We should not nee d th e fre e speec h claus e to attac k suc h anticompetitiv e dis crimination. In suc h cases, the equal protection claus e and a variety of state and federal civi l rights statutes should be invoked . In sum , then, there i s no reaso n t o suppos e tha t permittin g th e reasonable regulatio n o f eve n nondeceptiv e commercia l speec h could not provide long-term benefits. We should, of course, do wha t we reasonably can to prevent potentiall y valuable political o r othe r social sorts of speec h fro m bein g swept into th e ne t o f commercia l speech regulation . It is easy to thin k o f case s that tes t the boundary betwee n com mercial an d politica l speech . A cigarette manufacture r migh t con spicuously endorse the Bil l of Rights . In a television commercial , a clothing manufacturer migh t take at least an ambiguous position o n an important socia l issue. An advertisement might , with some irony, play off th e attenuation o f many social relationships, or of the gen eral public trust, in order to offer consumption-oriente d solutions . A poor perso n wh o i s reduce d t o beggin g ma y thereb y b e sai d t o engage in commercial speech or in broadly political speech. A magazine may seek to inform consume r purchase s with no financial stak e in the recommende d good s an d wit h o r without relate d advertise ments. Or scientificall y base d healt h claim s may be made o n behal f of particula r products , sometime s i n th e contex t o f a n otherwis e purely commercial ad . We should not , however, overestimat e th e frequenc y o r severit y of thes e borderlin e cases . Mos t advertisement s ar e classifie d a s

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commercial speec h accordin g t o an y reasonable theory . But thos e speakers who want to convey a political message protected by the law can readily avoid entanglement with commercia l elements . Thus th e truly unavoidabl e cost s o f misclassifyin g politica l o r commercia l speech ar e limited. Often , th e cour t i s able to separat e commercia l and noncommercial speech , thereby giving greater protection to on e than to the other . If necessary, the court ca n devis e special legal tests for particula r kinds o f borderlin e cases . For example , thin k o f a clai m tha t eg g yolks are healthful precisel y because of their cholesterol content. The court migh t wis h t o distinguis h amon g proponent s o f thi s clai m based not o n th e presence or absence of a financial interes t but o n a broader consideratio n o f what reaction s would logicall y please th e speaker. A scientist wh o see s specia l healt h benefit s i n eatin g eg g yolks presumably want s peopl e actuall y to eat , rather tha n merel y buy, eggs . A commercia l eg g producer , o n th e othe r hand , wh o makes precisely the same health claim may or may not car e what th e purchasers o f egg s d o wit h them . Instead , sellin g a s many egg s a s possible ma y b e hi s mai n goal . The eg g produce r ma y indee d b e most please d by purchasers who consistentl y buy eggs, throw the m away, and then buy replacements. There is no guarantee that an acceptable method for deciding particular borderlin e classificatio n case s of commercia l an d noncom mercial speec h wil l alway s b e available . Bu t ther e ar e way s o f reducing the rea l costs, if not th e risk, of incorrectly deciding clos e cases. For example , a court face d wit h a close case of classificatio n may want to determine whether th e speaker in questio n clearl y had, but unreasonably failed to exercise, some control over his own classificatory destiny . Some speakers, after all, can easily present what the y wish to sa y in a way that i s as clearly noncommercial a s reasonabl y possible under the circumstances .

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The courts may therefore wan t to establish reasonable legal incentives to encourage speakers who might otherwis e pose more difficul t problems o f classification betwee n commercia l an d noncommercia l speech. A judicial rul e might tak e the following form : I n borderlin e classification case s only, the court may treat speech as noncommercial if the speaker comes as close as reasonably and inexpensively possible under th e circumstances to presenting i t as noncommercial. What is reasonably possible must be considered in light of the speaker's actual resources and abilities , as well as the speaker's interest in not sendin g a distorted message or in addressing an undesired audience . In borderlin e case s o f commercia l speech , therefore , th e cour t might look to the speech alternatives available to the speaker and ask whether he ignored more clearly noncommercial speech alternatives. For example, a court migh t poin t ou t t o a store that i t is possible t o express its views about th e Fourt h o f July without describin g item s for sal e in lavish detail. Finally, if the court decide s that th e harm o f wrongfully classifyin g borderlin e politica l speec h a s commercia l speech i s generally worse tha n th e har m o f wrongfull y classifyin g borderline commercia l speec h a s political speech , i t ca n establis h another informal rul e that the remaining close cases will be classifie d as political speech . Let us assume that the speech in question i s classified a s commer cial. What degree of constitutional protection does the Supreme Cour t currently accord to suc h speech ? At least for th e moment, the basi c contours of the constitutional test for regulatin g commercial speec h can be traced t o th e Central Hudson case briefly referre d t o earlier . Central Hudson involved a state's regulation of a utility company's promotion o f electricity consumption. Th e basic idea underlying suc h regulation was one of conserving energy and natural resources. The Supreme Cour t devise d a four-part tes t that begins by specifying that the speech at issue

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must concern lawful activity and not be misleading. Next, we must ask whether th e asserte d governmenta l interes t i s substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.5 In practice, the Central Hudson tes t unhappil y combine s apparen t rigidity with remarkabl e vagueness i n suc h a way as to invit e chal lenges t o virtuall y an y regulatio n o f commercia l speech , howeve r reasonable an d carefull y considere d th e regulatio n ma y be. Often , application o f this test is mainly the formal elaboratio n o f subjectiv e judicial preferences . In referenc e t o th e element s o f th e Central Hudson test , i t i s important t o remembe r tha t th e genera l burden o f proof i n thes e typically haz y inquirie s i s placed o n th e government . Placin g th e burden o f proo f o n th e governmen t i s normally reassurin g whe n political o r ideologica l speec h i s bein g regulated . I n commercia l speech cases , however, this placement o f the burden o f proof com monly tends, at every stage of the test, to undermine reasonable government regulation . Next, le t u s loo k a t th e initia l Central Hudson inquir y int o whether the commercial speec h a t issue is "misleading." Th e idea of speech bein g misleadin g o r no t misleadin g i s a familiar one . Th e actual judicial inquir y int o misleadingness , however, is often com plex, multifaceted, an d indeterminate . We have already alluded t o the idea that commercia l speec h can be non-misleading i n a narrow sense yet still be misleading in a broader sense. The proble m i s also that man y commercia l claim s ma y be nar rowly misleading o r deceptive , perhaps eve n predictably so , but t o only a narrow or specia l segment o f the intended audience . It seem s unrealistic, for example, to support the claim that a commercial for a

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sugary breakfast cereal , featuring cartoo n character s an d aire d o n a Saturday morning , i s not legall y misleading becaus e i t would no t mislead reasonably intelligent adults. This is true even if many adults watch the commercial and even if all cereal is bought by adults. Below a certain ag e an d leve l o f maturity , childre n lac k the lif e experiences an d reasonin g ability—o r th e cynicism , general suspi cion, and socia l alienation—they wil l probably later acquire . They thus may accept claims and representations , express or implied, tha t adults would not . O r a n advertise r ma y more deftl y avoi d makin g falsifiable claim s whil e stil l conveyin g impression s o f enormou s product desirabilit y to children . On th e other hand , free speec h la w is often reluctan t to hold speech hostage to standards that are appropriate only to children . Further muddyin g th e water i s that i n most deceptiv e advertisin g cases, the crucial question i s not reall y the alleged misleadingness o f the speech. Instead, the issue is whether th e misleading claim can b e fairly ascribe d t o the speaker . The speaker ma y thus simpl y disput e the accuracy of the government's interpretatio n o f the ad for partic ular audiences. The government imputes one meaning to the ad, and the speake r impute s another . Th e speake r disclaim s an y inten t t o convey a misleading message and may fund surve y research showin g that fe w viewers interpret th e ad as making the claim in question. A dispute might arise, for example, over whether a bread manufacture r is or is not claimin g that on e will grow up stron g and health y if on e eats nothing but thi s bread. The problem o f audience heterogeneit y also is present here, with the results commonly indeterminate . These sorts of complications ar e often playe d out through a complex judicia l subdivisio n o f th e ide a o f misleadin g commercia l speech. Th e Suprem e Cour t ha s bee n know n t o conside r merel y whether th e speec h a t issu e i s misleadin g "i n th e abstract." 6 On e might suppos e tha t i t no t entirel y clea r ho w a statemen t ca n b e

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either misleadin g o r no t misleadin g i n th e abstract . What sor t o f audience is there in the abstract? Perhaps the idea is that some claims are more o r less universally bogus an d thu s misleadin g i n an y con text o r to an y audience. Is it misleading i n th e abstrac t t o labe l a n orange juic e containe r a s cholestero l free ? I s i t misleadin g a t all ? Some persons may find this label informative. On the other hand, no orange juice has ever contained cholesterol . Accordingly, the courts have developed complex typologies of misleadingness an d hav e varied their degre e of scrutiny of commercia l speech, depending o n whether th e speech is deemed actually , inherently, potentially, necessarily, demonstrably, or possibly misleading . The Federa l Trad e Commissio n make s further , mor e specific , inquires. All these characterizations take us in different directions . None o f thes e characterizations , however , bypasses th e nee d fo r only loosely constrained judgments about the presence, extensiveness, degree, and consequence s o f misleadin g speech . In som e cases , the misleadingness o f the speech is or can be reduced to some degree by means o f a disclaimer o r a warning. But the courts must then judg e whether th e phrasing, prominence, and clarit y of the disclaimer ar e sufficient o r whether the disclaimer itself creates undue confusion . Let us assume that th e issues of the speech's misleadingness hav e been resolved . The cour t mus t the n conside r whethe r th e govern ment ca n identify a substantial interes t underlyin g the regulation o f commercial speech, which is not a trivial or easily resolved issue. In particular, the government's burden i n this respect "is not satisfied by mere speculation or conjecture; rather, a government b o d y . . . must demonstrate that the harms it recites are real."7 Whethe r a substantial—and, of course, a morally and constitutionall y legitimate— government interes t is at stake can often b e contested. Depending o n the degree of their sympath y for th e state regulation, the courts ma y identify th e interest at stake in more and less favorable ways . Adding

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to th e indeterminac y i s that governmen t regulation s rarel y pursu e single-mindedly an d exclusivel y any particular interest . Like mos t other comple x huma n activities , governmen t regulatio n seek s a t least to balance th e interests , to take the edg e off th e mos t bother some trade-offs, an d t o pursue, if not rank , a range o f varied goals . Judges can often faul t a regulation fo r not eve n trying to maximize a particular cite d aim . The ide a o f "demonstrating " th e realit y o f a har m shoul d b e daunting. Many social harms canno t be rigorously demonstrated t o flow from an y particular cause . It is not eve n clear that th e crimina l law require s a prosecuto r t o demonstrat e th e presenc e o f al l th e criminal element s i n a case. Of course , the ide a o f demonstratio n need not be interpreted i n a rigid, deductive sense. Instead, the ter m demonstrate ma y be used with greate r an d lesser degrees of rigor. Its very adaptability, though, means that th e "demonstration" require ment i s available fo r us e by any court incline d t o derai l the regula tion o f commercia l speech . The combinatio n o f literall y rigorou s language an d th e lac k o f authoritative , specifi c guidanc e b y th e Supreme Cour t invite s the litigation o f any reasonable regulatio n o f commercial speec h an d open s the door t o judicial rejection o f suc h regulations by any court so disposed . This general problem i s made worse a t the next stage of the judicial inquiry. Here, the government i s required t o "demonstrate" that the regulatio n o f the commercia l speec h will "in fact " advance th e specified governmen t interes t "in a direct an d materia l way." As we might imagine , just what count s a s "directly" promoting a government interest is often ope n to dispute . In this context , directness ma y refer literall y to a n immediac y o r simplicity of connection between the regulation and the assumed government purpose. But directness is often interprete d as referring to the degree or magnitude o f the effect produce d b y the regulation. Thu s

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directness has been contraste d with tenuousness, speculativeness o r high speculativeness, ineffectiveness, conditionall y o f support, mar ginality of support, remoteness, or limited, incremental support . In large measure, the ideas of, say , direct versus speculative or limited support operat e merely as opposing end points on a continuum. Is the degree of effectiveness o f most government policies beyond dispute? Thi s inquiry' s potentia l fo r affixin g conclusor y label s i n th e process of upholding or striking down reasonable regulations shoul d be evident. Can the government show, for example, that it will achieve some useful goa l by distinguishing—if an d when i t does—betwee n beer or wine commercials and liquor commercials on television? The judicial focus o n directnes s o r immediacy versus indirectnes s is surely misconceived. Why should w e care whether th e regulatio n advances the government interest directly or indirectly, as long as the effect i s sufficiently positiv e an d substantia l an d th e othe r part s o f the constitutiona l tes t ar e met ? Surel y som e problem s ar e bes t approached indirectly . The Suprem e Court' s choic e o f the "direct ness" terminology i s surprising because i t rejected, i n a well-known line of basic commerce clause cases, just this terminology. The Cour t has learned t o focus o n the substantiality o r magnitude o f relation ships, as opposed to their directness or indirectness. Finally, in these commercia l speec h cases , the governmen t mus t show that th e regulatio n i s not mor e extensiv e than i s necessary t o promote th e governmen t interes t a t stake. But this is an extremel y demanding requirement . S o construed , thi s formulatio n woul d allow courts t o strik e dow n reasonabl e regulation s o n th e basis o f some rea l o r imagined , slightl y less restrictive mean s o f achievin g presumably the sam e o r sufficientl y simila r goal . How a court i s to decide whether achievin g a somewhat simila r goa l through a n alter native regulation—o r 9 0 percen t o f th e government' s origina l goal—is reachin g the sam e goal is left unclear . It is not difficul t fo r

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the court s t o envisio n suc h regulator y alternative s i f the y ar e s o inclined. They need not weigh the real feasibility, degre e of effective ness, or cost in othe r values—including th e free speec h interest s o f other persons—of whatever alternative regulation they may consider. In severa l cases , however, the Suprem e Cour t specifie d tha t th e "not mor e extensiv e than necessary " requirement i s not t o be inter preted with literal rigor. The government, it stated, need not discove r and us e only the presumed absolutel y least restrictive means of promoting the government's interest . The scope or burdensomeness o f the restriction—assuming, interestingly, that scope and burden mean the sam e thing—must someho w be reasonable o r i n proportion t o the interest served by the regulation . A bi t o f residua l hazines s fro m thi s requiremen t linger s here , which become s murkie r whe n w e tak e a mor e realisti c vie w o f things. Surely there ofte n wil l be graduated trade-off s betwee n th e scope o r burde n o f tw o possibl e regulation s an d thei r degree s o f effectiveness. Th e law should therefor e recogniz e that a slightly less burdensome regulatio n ma y well be slightly, though hardly dramatically, less effective. Doe s this suffice fo r constitutiona l purposes ? O r we could sa y that th e slightly less burdensome regulatio n achieve s a slightly different goa l or mi x o f goal s than doe s the mor e burden some regulation? How different mus t an effect b e before i t no longe r is the same effect fo r free speec h purposes ? Less obvious are the often unarticulate d problem s in determinin g whether on e commercia l speec h regulatio n i s really broader, mor e burdensome, or more restrictive than another . For example, how d o we trade off a decrease in the numbers or kinds of speakers regulated against an apparent increas e in the severity of the regulation? Which is more important t o assessing degrees of burden: financial cos t or a very sligh t distortio n o f one' s message ? Thes e problem s wil l exis t even if we ignore the free speec h and othe r interest s of third partie s

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not before th e court. Let us focus, therefore, onl y on th e free speec h interests o f the commercia l speakers , ignoring eve n the fre e speec h and other interests of the audience itself. Realistically, it is often difficul t t o sa y whether on e regulatio n i s "worse" overall for a commercial speaker than some other regulatio n is. This i s partly a matter o f th e unpredictabilit y o f futur e conse quences. But the problem i s deeper than that . Bad consequences fo r one's fre e speec h hav e variou s dimensions , which ar e no t eas y t o compare. Two possible speec h regulation s may , for example , have different effect s o n th e siz e o f one' s audience , an d thi s ma y b e important. Bu t s o may the compositio n o r demographic s o f one' s audience. One may or may not prefer a smaller but mor e affluent o r a more substantively targeted or receptive audience. By themselves, the alternativ e regulation s ma y impose differen t financial cost s in reachin g one' s audience, or eac h may require tha t one change one's message to some degree. How is the court to deter mine whether a slightly altered messag e i s fully compensate d b y a somewhat large r o r somewha t differen t audience ? Ho w are differ ences i n th e require d media , audienc e mood , o r tim e o f da y to b e factored i n whe n th e court s decid e tha t on e regulator y schem e i s broader o r more burdensome tha n other ? For free speec h purposes , the breadth of a regulation simply cannot be read off the text, that is, intuitively inferred . A regulation tha t "looks " broader may , to th e speaker, be less burdensome. Which, then, is more burdensome—to b e denied al l use of a particular mediu m o r to be allowed the use of all media, but onl y with an embarrassin g warnin g labe l or disclaimer ? I t is clear that man y courts eithe r ignor e o r resolve these sort s o f issues in a self-servin g way. Those courts inclined to find a regulation unconstitutiona l ca n often, give n th e indeterminacie s involved , simpl y poin t t o som e arguably narrower alternative .

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Matters would b e simplifie d a bit i f the court s coul d rel y on th e individual speake r to explain which regulator y schemes are, at least from it s ow n perspective , mor e an d les s burdensome . Suc h a n approach would , however , b e unreliabl e eve n wit h regar d t o tha t speaker's own, largely subjectively determined , fre e speec h interests . For several reasons, speakers often hav e strong incentives to be less than candi d in this regard. Suppose, for example , that i n the eyes of the court ther e ar e onl y two ways of achievin g a given governmenta l interest . One method , actually adopted and enforced i n the case at hand, is the one less burdensome o n th e speaker' s fre e speec h rights . Th e othe r metho d would be more burdensome but has, from tha t speaker's standpoint , a saving grace, that i t could probabl y be blocked politically . Therefore, it is unlikely to be enacted for on e or another arcan e reason. Or if it were enacted, it could i n practice be rather easil y evaded by the speaker; that is , it might be difficult t o enforce. Under thes e circum stances, the speaker is better of f with what is in some sense the mor e burdensome regulation . The speake r may , therefore, hav e a stron g incentive t o argu e fo r a potentially mor e burdensom e regulation . The court , certainly , ma y no t b e priv y t o th e practica l politic s o f enactment an d enforcement i n this area. The proble m i s actuall y broade r tha n thes e example s suggest . After all , commercial enterprise s car e about mor e tha n degree s o f burden on their free speech rights. Shareholders do not judge a company's performance solel y on it s tenacity in resistin g threats to cor porate free speech . It is fair t o say that mos t commercia l enterprise s would prefer greate r restriction s o n thei r commercia l speec h right s to being forced int o bankruptcy and liquidated a s unprofitable . Yet current fre e speec h doctrin e encourage s commercia l speaker s to pretend otherwise . As the Supreme Court recently recognized, the government's power to close down a business for health reasons does

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not automatically imply a government power to impose any and all forms of commercial speech regulation on that business. The power to force anyone to say or not say anything the government wishes is not a lesser powe r include d i n th e governmenta l powe r t o clos e down the business itself for appropriate reasons. The commercial free speech test considers only a particular kind of regulator y burden—th e burde n o n freedo m o f speech . Thus, those burdens imposed on a commercial enterprise that do not currently count as burdens on speech—which sometimes include huge losses in profits or even insolvency—simply do not matter for fre e speech purposes, however much they may matter to the commercial enterprise. A business therefore ha s a current judicial incentive to contend tha t a regulatio n tha t woul d mor e severel y burde n it s speech would not do so if the less speech restrictive regulation were riskier or more costly for reasons deemed unrelated to commercial speech. That is, it is better to pretend that a rule is less burdensome on one's speech than to go out of business. Curiously, some industries may have a real incentive to pretend to prefer commercial death to restriction of their commercial speech. An industry that senses it cannot realistically be closed down or rendered unprofitable has every incentive to argue that the government has the constitutional power to close the industry, even without paying compensation, but does not have the power to impose particular commercial speech regulations on the industry, because they are too burdensome or insufficiently narrowl y tailored. In any event, it is a mistake to assume that the courts will uniformly allow governments broad discretion in the degree of tailoring, proportionality, or "fit" between the breadth or burdensomeness of the regulation and the government interest at stake. The Supreme Court insists that the scope or proportionality of the regulation be "carefully calculated." Thi s formulation, given the inherent indeter-

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minacies involved, again encourages judicial second-guessing o f reasonable commercial speech regulations . Whether the Supreme Court will soon modify an y elements of the current commercia l speec h tes t i s unclear . A t leas t som e curren t members o f the Court see m receptive to strengthening the constitu tional protection accorde d t o non-misleadin g commercia l speech . Their inclinatio n no w seem s t o b e t o strengthen , rathe r tha n t o weaken, the requirement tha t the regulation be no broader than rea sonably necessary . Th e Suprem e Cour t migh t rewrite , o r merel y interpret mor e rigorously , thi s elemen t o f th e commercia l speec h test. Although i t als o i s possibl e tha t th e curren t tes t wil l no t b e strengthened i n an y respect, there is , at this time, little suppor t o n the Court for weakening the commercial speech test. Protecting commercia l speec h currentl y appeals, interestingly, t o both conservatives—especiall y t o economi c o r laissez-faire , a s opposed t o som e cultura l o r Burkea n conservatives—an d th e rela tively liberal member s o f th e Court . Th e latte r apparentl y see n o prospect o f collision between th e increased protectio n o f non-mis leading commercia l speec h an d th e moder n regulator y an d con sumer protection stat e they also clearly favor. The idea, for example , of promoting health , nutritional, or envi ronmental goal s by restricting advertisin g that i s not narrowl y misleading i s currentl y viewe d wit h grea t suspicio n b y mos t o f th e Court. Th e justice s vie w a s mor e constitutionall y attractiv e th e alternative regulator y schemes , includin g specia l taxation , man dated disclosur e o f information , an d eve n prohibitio n o f th e product i n question . Suc h scheme s ar e assumed—dubiously , however—to b e less paternalistic, and th e Cour t seem s to assum e also that the y will ordinaril y b e practical. 8 W e have alread y seen , however, som e reaso n t o doub t th e universa l trut h o f tha t assumption.

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What initial conclusions may we draw concerning the regulation of commercial speech? We have every reason to believe that commercial speakers can generally take care of their own interests without rigorous free speech protection, beyond a requirement that the regulation be reasonable. In ou r culture , the broad, implicit, and often unintended messages of advertising and commercial speech in general are not significantly contested by any substantial coalition of cultural forces. Reasonable regulations of commercial speech, whatever their mor e immediat e particula r justifications , ten d a t least minimally—and i f only symbolically—to reduce the cultural preeminence of commercial consumption . There is no reason in the logic of the free speech clause, broadly understood, not to pursue this course. The largely inadvertently accrued power of commercialism could be fairly reduced for the sake of greater cultural freedom , well-being, and broad rang e of values underlying the free speec h clause. A constitutional democracy should at least be judicially permitted to embark on such a course. The curren t leve l o f constitutiona l protectio n fo r commercia l speech is disturbing enough , and there is some indication i n th e most recent cases that even that level of protection may be raised. Things coul d ge t worse , however, eve n i f th e Court' s tes t i s no t changed. Th e present level s o f fre e speec h protectio n ma y make more difficult th e reasonable state and federal regulation of many sorts of ordinary businesses. We are not thinking here of restrictions on tobacco and alcohol advertising but, instead, of government regulation of environmental claims made by product sellers, the sale of securities, or even nutritional labeling. After all, to be told how to express one's environmental claims of biodegradability or recyclability or how to convey the saturated fa t or cholesterol content of one's product is to restrict one's commercial speech. Many free speech cases in other contexts indicate that

Commercial Speec h i n Contex t • 7 3

compulsory o r standardize d speech , or eve n rule s prescribing ho w one must express one's ideas, may violate the free speech clause. Why can't a seller offer evidenc e that it s way of talking about recyclabilit y or health hazards is as good a s the government's mandator y schem e and thus should be accommodated o n free speech grounds? Can th e government sho w that makin g such accommodation s woul d under mine the regulatory purpose? Aren't there othe r ways of promotin g conservation o r nutritional awarenes s that d o not restric t commer cial speech, or a t least not s o severely? Can the government demon strate, i n advance , tha t al l th e alternativ e rule s woul d b e les s effective? Wh y can' t th e market , th e tor t system , o r crimina l la w decide on acceptabl e levels of recycling? Already this logic is at work in Supreme Court and other federal cour t opinions . Without arguin g that commercia l speec h should alway s be valued as highly as political speech is, the Supreme Cour t recentl y equated , in some respects, the constitutional value of both kinds of speech. No doubt there are grounds to do so, as long as we focus on whether per sons normall y car e a t leas t a s muc h abou t commercia l speec h a s about political or electoral speech. In an increasingly commercialize d culture, commercial speech becomes in some sense more important . The Court held, for example , that a city may not attac k problem s of safet y o r aesthetic s b y limitin g commercia l bu t no t politica l speech, if commercial speec h i s no wors e tha n politica l speec h i n the relevan t respects. 9 I n suc h a case, the Cour t woul d prefe r tha t the cit y promot e it s chose n interest s b y als o restrictin g politica l speech. Thus the Court in effect ha s created something of an equal protection clause for commercia l speech. Unless commercial speech is more closely related to the underlying harm than political speech is, it cannot be restricted more severely than political speech is. This may seem like evenhanded justice. But i t is actually, given ou r constitutiona l

74 • Commercia l Speec h i n Contex t

history, a rather curiou s result . Let us consider a brief hypothetica l example. Imagine tha t w e are on a ship tha t wil l sink unles s two units of weight ar e jettisoned. We of course wan t t o avoi d sinking , but we want to do so at low cost. It is therefore bette r to toss over two unit weights o f glas s tha n o f diamonds , or , for tha t matter , o f huma n beings. Let us suppose, though, that o n board instea d o f diamond s or glas s ar e a numbe r o f discrete , separable , on e uni t weight s o f commercial speec h an d of political speech . Tossing overboard an y two unit s o f speec h wil l sav e the ship . As perhaps befit s a highl y commercialized society , the Supreme Cour t ha s in effect forbidde n us from tossin g overboard tw o units of commercial speec h in orde r to save most of the commercial speech and all of the political speech. This result, however, is not required by a reasonably broad view of our reason s for protecting speec h i n the first place , especially given our presen t cultura l circumstances . Instead, such a result protect s commercial speec h at the expense of the broad rang e of free speec h values, of democratically expresse d an d well-founded view s of free dom itself , o f well-being , an d o f th e prope r scop e an d limit s o f purely commercial values. Before w e begin a survey of some o f the dimensions o f contem porary commercia l advertising , le t u s as k on e fina l preliminar y question. We have argue d tha t i n general, the regulation o f com mercial speec h shoul d be constitutionally tested onl y for whether i t can be said t o be reasonable o r unreasonable. At this level, it doe s not muc h matte r whic h party bears the burden o f proof. Surely the government wil l want to offer som e accoun t o f the reasonablenes s of the regulation. The placement o f this burden wil l not be objec tionable i f the courts defe r t o the government o n matters suc h as the weight of the relevant evidence or that of competing public policy concerns.

Commercial Speec h i n Contex t • 7 5

But what sort s of policy goals or interests coun t a s reasonable i n regulating commercia l speech ? As we suggested, even nondeceptiv e commercial speech can sensibly be regulated in the name of environmental protectio n o r nutritiona l education , fo r example . A mor e interesting question might center on the claim that a culture of commercial consumptio n doe s not promot e freedo m an d well-being a s much a s we had hoped . Could a government cit e that very belief, by itself, as reasonable grounds for regulating commercial speech ? In such a case, the government would not be making the more specific clai m tha t th e commercia l speec h i n questio n wa s associate d with som e narrower harm , such as the failure t o optimize recycling . Instead, the government's clai m would be merely that the regulatio n at least minimally legitimized the alternatives to what we have called consumptionism o r that it made consumptionism see m less naturally inevitable. The point, however, is not to advance a particular view of consumption but actually to promote freedom an d happiness. In a proper case , the latter sor t o f restriction shoul d b e upheld a s reasonable. It is too late to pretend tha t a liberal societ y can some how be completely neutral i n its effects o n al l possible ways of pur suing what people see as good ways of living. The constitutional tes t should not be whether the reviewing court finds the critique of con sumptionism t o be convincing but whether a reasonable person o r a government coul d fin d i t persuasive. Nonetheless, it will always be reassuring to a court fo r th e government t o be able to offer a n addi tional, more specific justification fo r regulating commercial speech . What, though, would b e a proper cas e of regulating commercia l speech solel y to encourag e alternative s to consumption , alon g wit h the resulting effects o n freedo m an d happiness ? We should certainl y respect the equal protection rights of particular commercia l speaker s not t o b e arbitraril y burdened . W e must—withou t doub t i f no t without som e irony—rul e ou t regulatin g speec h tha t intentionall y

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endorses broa d consumptionis m a s a wa y o f living . Thi s sor t o f claim i s clearly not pur e commercia l speech . Instead, it is a broader social o r cultura l clai m tha t i s not alway s made, as a matter o f th e speaker's intent , i n ever y commercia l advertisement . Suc h claim s deserve greate r protection tha n a n inquir y merely into th e reason ableness of the regulation . No doubt i t is possible for the viewer of any ad to conclude—as a result of viewing that an d othe r ads—tha t consumptio n i s the mos t preferable wa y of living. But we do no t an d canno t protec t speec h based merely on what it may inspire persons to conclude, apart fro m the speaker's actua l intentions. Inserting a daisy into the barrel o f a soldier's rifl e will , in th e circumstance s o f a protest rally , usuall y amount t o protected speech . But the mere growing of the daisy does not ris e t o th e leve l o f speech , eve n i f th e sigh t o f th e dais y pre dictably inspires broad reflectio n on , say, conservation o f the envi ronment, peace, beauty, or the fragility o f life. To advertise a product is roughly to seek to promote the sale or profitability o f that or som e related product , now or in the future. Thi s is not necessaril y to see k also to convey the desirability of a consumption-focused wa y of living generally. As we have seen, some advertisers may in fact disagre e with this latter, broader idea . To say that we should bu y a particular good doe s no t necessaril y mea n tha t w e shoul d generall y pursu e happiness throug h consumption , an y more than performin g musi c implies a belief that we should listen to music more often . So the regulatio n o f commercia l speec h i n prope r cases , for th e sake of validating o r reducin g the accumulated cultura l bias agains t less consumption-oriented style s of life, remains open. Most govern ments are unlikely to undertake such regulation as a practical matter. If they did, however, the reviewing courts would rightly want to consider matter s suc h a s th e severit y o f th e burde n o n th e regulate d party and henc e an y arbitrariness i n singlin g out fo r regulatio n th e speaker or the particular industry .

Commercial Speec h i n Contex t • 11

The goal of legitimizing less consumptionist lifestyle s woul d not , for example , justify prohibitin g al l advertising b y Coca Col a whil e leaving Pepsi's advertising untouched. This would rightl y be seen as unduly burdensome an d arbitrary—s o clearl y so that the presume d intention o f the regulation itsel f would in all likelihood be undercut . Such a n inexplicabl y biased rul e would impeac h th e clai m tha t w e are really trying to validate less consumption-oriented lifestyles . Not all lines of division need to be so arbitrary, however. Some products, for example , may be more closel y associated wit h consumptionis t lifestyles tha n other s are. In principle, therefore, commercia l speec h is subject t o regulatio n accordin g t o a generalized lifestyl e theory , but commercia l speaker s ar e no t defenseles s agains t biase d an d unfair regulation . Some people might argu e that i t is possible to promote noncom mercial ways of living not onl y by regulating commercial speec h bu t also by a government subsid y of noncommercial o r anticommercia l speech. Speech subsidie s ar e well known t o the legal system. Com mercial advertisin g cost s may be tax-deductible busines s expenses , and muc h commercia l marketin g material, commonly referre d t o as junk mail , is delivered a t a subsidized posta l rate . But then , som e noncommercial speec h is also subsidized unde r th e current system . A religious organization, for example, whose major tene t is the repu diation of commercialism, could qualify fo r various tax advantages. The main reason for not relying more heavily on the subsidizatio n of either anticommercia l o r noncommercia l speec h i s the practica l problem o f direct o r visible financial costs . Regulating commercia l speech—say, tobacco advertising—doubtlessl y ha s indirect costs , at least to consumers o r investors. But in a time of concern fo r govern ment budge t deficits , it may seem less politically appealing to incu r the more direct costs of subsidizing some additional selected portio n of anticommercial o r noncommercial speech .

Tobacco an d Patronizing Speech He stopped smoking at least once a month.

c h a p t e r t w

o

For some time, a battle has been unde r wa y between tobacc o seller s and governmen t regulator s o f tobacco advertising . It is not surpris ing that th e tobacco sellers ' arguments ar e patronizing, superficial , self-serving, an d hypocritical . Bu t perhap s mor e surprisingly , th e counterarguments b y the governmen t regulator s o f tobacco adver tising ar e equall y so. Tobacco seller s conten d tha t th e purchas e o f cigarettes by adults is normally a free and voluntary choice, no mor e reflective o f addictio n o r a lack of consen t tha n th e desir e to con tinue to live in the same house or to go to the same job day after day . Although i t would no t violate the tobacco sellers ' free speec h right s 78

Tobacco an d Patronizin g Speec h • 7 9

simply t o shu t dow n thei r busines s a s a health hazard , a s long a s tobacco can be sold legally, the rights of willing adult buyers and sellers t o exchang e nondeceptive , non-misleadin g informatio n an d imagery must, the sellers believe, be respected . Government regulator s of tobacco advertising, on the other hand , see th e evidenc e a s reasonabl y clea r tha t restriction s o n tobacc o advertising can substantiall y affect th e purchase o f tobacco. Accordingly, they believe that i f advertising i s restricted, significantl y les s tobacco will be bought. The problem, according to government reg ulators, is that to o man y persons—and to o man y young persons i n particular—are unawar e o f or underestimate th e serious long-ter m health risks of tobacco, especially given the addictivity of smoking. In fact , however , neithe r o f thes e tw o set s o f argument s i s full y acceptable. Both giv e themselves, overgenerously, the benefit o f th e doubt. Both , in thei r ow n way , are unduly patronizing . Bot h mis s crucial points, with neithe r remotel y approachin g wha t i s increasingly the cor e of the problem o f tobacco consumption . Instead , we offer th e alternative o f a class-based analysi s to the argument's stan dard focus o n age. Much o f the attentio n i n the curren t debat e is on tobacco adver tising and young people. At first, this seems sensible; after all , most people do not begin smokin g at age thirty. For the tobacco busines s to remai n financially healthy , tobacco seller s a s a class must eithe r increase the amount o r value of tobacco consumed pe r person or , in the long run, recruit ne w smokers to replace those who, for on e rea son o r another , have stopped smoking . Their solutio n ha s been t o concentrate their efforts o n young potential smokers. Given our commercial free speec h law, as well as the nature of ou r economic system , both governmen t regulator s an d tobacc o seller s have a n interes t i n retainin g thi s focu s o n th e young. For govern ment regulators , the advantage is the ability to center the discussio n

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on th e mos t objectionabl e practices , particularly th e illega l sale of tobacco to minors. Constitutionally and politically, government reg ulators are most comfortabl e condemnin g sale s that ar e already illegal under stat e law, along with advertisin g that i s said to encourag e such illega l sales. Government regulator s ma y even tr y to trea t al l tobacco advertising as proposing one or more illegal transactions, in the form o f illegal sales to minors. Nonetheless, this ingenious argu ment can be refuted b y the tobacco sellers' merely adding to their ads "you must be eighteen." The tobacco seller s do not , moreover, objec t t o this attentio n t o the young. After all , tobacco seller s need no t defen d illega l sales t o minors. All they need to do is deny that particular form s o f advertising are intended t o promote suc h illegal sales or that the advertisin g does in fact significantly enhance such illegal sales. This is, at the very least, a surprisingly comple x and difficul t empirica l claim , the bur den of proof o f which is on the government . It is easy to allege that restricting tobacco advertising in some way will substantially reduce illegal sales. But proving this allegation, in the court o f eithe r socia l scienc e o r law , i s anothe r matte r entirely . Remember that as a constitutional matter, the government must prove not only that the advertising restriction will substantially reduce such sales but als o that a similar reductio n coul d not be achieved by any means substantially less restrictive of the tobacco sellers' free speec h rights. The potential effectiveness o f alternative regulatory measures, such as educational scheme s and the more rigorous enforcement o f existing laws, are, at best, debatable. For the tobacco sellers, then, this is hardly unfavorable terrain on which to fight. Neither side, in contrast, has an interest in shifting attentio n to the uncomfortable trut h tha t tobacc o consumptio n i s becoming mor e and mor e a socioeconomic class-base d phenomenon . Fo r govern ment regulators , emphasizing this truth would suggest that smokin g

Tobacco an d Patronizin g Speec h • 8 1

now reflect s no t onl y th e superficia l manipulatio n o f advertisin g imagery but als o the real and perceived hardships and inequalities in basic life prospects and that greatly reducing smoking would requir e mitigating thos e hardships an d inequalities . For governments, it is usually more politically attractive to try to require a disease-generat ing industr y t o chang e merel y ho w i t talk s tha n t o addres s basi c inequalities i n various economi c classes ' life chances . Think o f th e analogy her e t o ho w som e governments , dependen t o n revenue s from lotter y ticke t sales , awkwardl y underpla y th e economicall y regressive character of this revenue source. Likewise, the tobacco seller s have little interest i n acknowledgin g that smoking has become a class-linked phenomenon. In principle, a major America n industr y coul d explicitl y sell itself a s the refug e o f the distinctively disfavored o r a s the dubious consolatio n o f the less affluent. Bu t this approach woul d contradic t th e tobacco industry' s long-term commitmen t t o associatin g smokin g wit h glamour , sophistication, carefre e an d uninhibite d enjoyment , recreationa l activity, and self-sufficienc y an d independence . And there ar e obvious risk s i n changin g a broad-based commercia l appea l t o a nar rower, less positive appeal, especially when the new target consumer s would generally be less affluent . The politics and commerce of emphasizing that tobacco is by now largely a class-related matte r ar e thus rather inconvenient , except, of course, to the less affluent themselves . Our followin g accoun t o f th e changing economi c demographic s o f smokin g doe s no t den y th e addictiveness of cigarettes and does not view the decision to smoke in the first place—let alon e to continue to smoke—as a gloriously fre e and uninhibited consumptio n choic e by the less affluent. W e also do not patronize the less affluent b y claiming that their smoking reflect s either their ignorance of the health risks involved—even i f the likelihood o f addictio n itsel f is , at leas t publicly , underestimated —

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or thei r seductio n b y commercia l advertisin g ploy s tha t coul d b e restricted. Smoking amon g th e les s affluent, w e instead argue , may reflec t not s o much an y hypnotic power o f cigarette advertising as the rea l and perceive d circumstance s o f life amon g the less well off. Admit tedly, this mean s tha t th e government' s powe r t o enhanc e people' s lives in this respect is not principally a matter of regulating commer cial speech. The motives for smoking among the less affluent will not evaporate if tobacco ads are further restricte d o r prohibited. Instead , and mor e fundamental, a structural redistributio n o f opportunitie s would be necessary. We firs t conside r th e commercia l speec h regulator y world s o f Washington, D.C., and Ottaw a an d judicial reaction s to the regula tion o f tobacco advertising . The constitutional provision s regardin g freedom o f speec h i n th e Unite d State s an d Canad a wer e enacte d during differen t historica l era s and unde r muc h differen t cultura l and historical circumstances . The texts of the two free speec h provisions are not very similar. Yet in both countries, in practice, the same sorts of issues and inquirie s ar e read into commercia l speec h cases . Surely this should tell us something about the actual process of con stitutional interpretation . These tw o regulator y an d judicia l world s hav e bee n changin g rapidly, and so we shall try to keep the discussion fairly general, concentrating o n theme s an d broa d idea s rather tha n focusin g exclu sively o n detaile d proposals , regulations , o r specifi c element s o f particular legal cases. Let us look first a t some element s o f the regulator y measures pro posed by the Food an d Dru g Administration (FDA ) under the Clin ton administration. 1 Th e headlin e stor y describin g th e propose d regulations was the attempt to alter the statutory and administrativ e

Tobacco an d Patronizin g Speec h • 8 3

status quo by asserting authority to regulate tobacco under the Food, Drug, and Cosmeti c Act. The reasonin g wa s that Congres s autho rized a n FD A finding tha t tobacc o product s ar e intended t o affec t bodily functions an d tha t cigarette s ar e intended a s devices for th e delivery of chemicals, such as nicotine, having those effects . Although th e jurisdictiona l questio n o f th e scop e o f th e FDA' s authority is important, it is not our central concern. We turn instead , for illustrativ e purposes, to som e of the financial, packaging , adver tising, promotional , marketing , sales , an d othe r distributiona l requirements unde r th e propose d FD A rules . Th e rule s impose d both affirmativ e o r "positive " requirement s an d prohibition s o r "negative" requirements. It is clear that the express intent of the proposed rules was to discourage the illegal sales of tobacco products t o minors. Thes e mean s include d attempt s t o reduc e th e appea l o f tobacco t o minor s beyon d merel y supportin g prohibition s o f th e illegal sales themselves. Issues such a s governmental intrusio n int o legal lifestyle o r consumptio n choice s by minors, now and a s futur e adults, and also those by current adults were thus a consideration . In brief, the proposed regulations were aimed at barring some cigarette-vending machines, distributing free samples, and sellin g small numbers o f cigarettes. Retailers would have to verify the buyer's age. Manufacturers woul d be required to pay for a public education cam paign t o reduc e th e appea l o f tobacc o t o minors . Trad e o r bran d names fo r establishe d nontobacc o product s coul d no t b e trans ferred, along with their appeal, to tobacco products. Most important, the regulations would require that tobacco ads in publications whos e readershi p wa s eithe r mor e tha n 1 5 percen t youth o r more than two million young readers be limited to text an d to black-and-white copy . In addition , consumer item s identifying a brand o f tobacco , lik e cap s an d T-shirts , an d th e sponsorshi p o f events such a s automobile race s and tenni s tournaments woul d b e

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prohibited. Additional health-relate d warning s woul d b e require d on al l cigarett e advertising . Finally , billboar d advertisement s o f tobacco within on e thousand fee t o f schools o r playgrounds woul d be prohibited . In this context, how have the cultural assumptions regarding classic free speec h controversie s changed ? The purpose, for example , of the requirement tha t tobacc o ad s in periodicals be text onl y and i n black and white is clear. Young people, indeed young magazine read ers, are assumed t o be uninspire d by , if not allergi c to, black-andwhite text. This unflattering assessmen t an d the resulting restrictio n would likely pose only an unusually interesting challenge to advertising agencies. Given thes e constraints , they would hav e to desig n a new sort o f tobacco a d to capture th e interest o f both young peopl e and adults . But such a challenge seems no more unmanageable tha n asking a jazz virtuoso t o improvis e a n interestin g them e base d o n several apparently poorly related musical notes. The broade r poin t i s that i n th e past , requirin g tha t disfavore d messages be conveye d i n black and whit e has not bee n though t a n effective metho d o f repression by those who believed those messages to be harmful. I t is difficult, fo r example , to imagin e Cardina l Bel larmine decidin g that Galile o should be free t o discuss heliocentric ity as long as he did so using only black-and-white text . In any event, because we have reached the historical point at which ordinary text is now regarded a s vaguely aversive, we should revie w the constitutional statu s of the black-and-white tex t requirement fo r tobacco ads in magazines with a high proportion o f youth readers. Here we discover competin g constitutiona l platitudes . On behal f of the regulation , we might argu e that th e form an d th e conten t o f speech ar e largel y separabl e an d tha t th e black-and-whit e tex t requirement primaril y affect s th e form , rathe r tha n th e content , o f the tobacco sellers ' commercial message . The regulation als o make s

Tobacco an d Patronizin g Speec h • 8 5

at least som e attemp t t o exemp t fro m th e scop e o f it s restriction s those magazines intended mainl y for adults . Conversely, in at least some contexts, we have become increasingl y distrustful o f the distinction between form an d content. How graphically or entertainingl y a message is delivered has become a part o f the idea or image conveyed. At least in part, the medium i s the message. And i n this case, one coul d argue , the restriction hold s speec h intended for adults hostage to what is fit for children . Setting asid e for a moment th e issue s of burdens an d degree s o f proof, the cour t woul d as k whether thi s sor t o f advertising restric tion was effectively promotin g a substantial publi c interest. It woul d then ask whether the restriction was sufficiently narrowl y tailored, in the sens e o f accomplishin g it s purpos e withou t unnecessaril y restricting the tobacco sellers' speech. Can we envision other, signifi cantly less speech-burdensome way s of equally promoting th e sam e public interest ? These inquiries are part of the record of evidence before the court . They are also, however, a matter o f judicial sympathy and predispo sition and , to a degree, even o f judicial speculatio n an d fiat . If , fo r example, it seems to the cour t tha t unde r th e restriction , adult s ar e being told by the government tha t some legal products are good an d others ar e bad, with th e allege d harms being concentrate d o n con senting adults, it would probably rule against the regulation . We should stress that our argument does not depend on any sense in which som e tobacco advertising—fo r instance , of a healthy cou ple frolickin g an d smoking—migh t b e sai d t o b e misleadin g o r deceptive. Instead , w e ar e usin g demonstrabl e medica l harm s o f remarkable severity , chiefly t o th e smoker s themselve s bu t als o t o unconsenting thir d parties . Furthermore, we are seeking to regulat e only commercial speec h an d no t noncommercia l speec h endorsin g tobacco.

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One can easil y envision suc h advertisin g restrictions being struc k down a s unconstitutional, eve n in the face o f the argumen t tha t th e adult purchas e an d consumptio n o f tobacco will predictably affec t the well-being of others, especially minor children, in the household . Two points ar e crucial here. First, despite what commo n sens e tells us, it would probably be difficult fo r the government to demonstrat e that th e sort s o f ad s to be prohibited d o i n fac t contribut e signifi cantly to smoking by children an d adults. Second, it would be just as difficult fo r th e government t o show that th e speech restrictions ar e narrowly tailored an d tha t n o significantl y les s speech-burdensom e ways of promoting the public interest at stake are available. It i s surprisingly controversia l whether , o r ho w much , tobacc o advertising actuall y induces childre n an d young adults—or peopl e in general , for tha t matter—t o smoke . Tobacco companie s spen d enormous amount s o f mone y o n advertising , s o i t seem s fai r t o assume tha t the y believe that ther e i s a good reaso n fo r doin g so . Perhaps the ad s reassure establishe d smokers . The tobacco compa nies ar e wel l awar e tha t generally , eithe r person s star t smokin g when the y ar e young, or no t a t all . Furthermore, childre n d o hav e some awarenes s o f cigarett e advertising . On e well-know n stud y found tha t 3 0 percent o f three-year-olds an d 9 1 percent o f six-year olds were able to match the cartoon characte r "Joe Camel" with cigarettes.2 Even i f w e assumed , however , tha t Jo e Came l ha s le d t o a n increase i n sale s of Camel s cigarette s amon g younger smokers , this would no t prov e the necessar y point. The tobacco seller s maintai n that th e intention, an d the onl y significant effect , o f tobacco adver tising is to maintain o r increase the market shar e of legal customers. The idea is thus supposedl y not t o motivate tobacc o us e in the firs t place o r t o conver t youn g nonsmoker s bu t t o affec t rate s o f bran d switching or brand choice .

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If we had n o empirica l evidence , we might simpl y dismis s suc h claims a s self-serving rationalizations . But generally, teenagers an d adult smokers are not overly inclined to say that they would not have smoked if it had not been for tobacco advertising or that tobacco ads were a crucial element in their decision to smoke. Moreover, many of the motivation s fo r takin g u p smokin g o r continuin g t o smok e d o not see m to depen d o n tobacc o advertising . Although som e o f th e reasons t o smoke , suc h a s a perceived lin k betwee n smokin g an d glamour o r cowbo y independence, may be dependen t o n advertis ing, others may not. For example, if a young person take s up smok ing as rebellious o r authority-defyin g behavior , restrictin g th e ad s for tobacc o ma y only strengthen th e associatio n betwee n smokin g and rebellion and actually enhance the cachet of the former . The socia l scientifi c evidenc e fo r whethe r tobacc o advertisin g increases the rates of smoking in general is surprisingly murky, complex, and equivocal. 3 Studie s i n the United State s and othe r coun tries reache d conflictin g conclusions , and i t is not difficul t t o fin d possible methodological flaw s and uncertainties in some of them . For example , it ofte n i s not eas y to decid e eve n wha t count s a s tobacco advertisin g o r ho w t o measur e it s presenc e o r amount . Should on e attempt t o account fo r change s over time in what migh t be called the antiadvertising o f tobacco, as in the release of reports by the U.S. surgeon general, or for change s in health warnings or publi c policy? Ca n som e consume r good s ac t a s a substitute fo r tobacco ? Should on e tr y t o accoun t fo r change s i n th e rat e a t whic h thos e goods are advertised or in their price relative to tobacco? What abou t advertising "clutter" in general or changes over time in the degree of ad clutter? Could these issues have any impact on the effectiveness o f tobacco ads? Should we assume that smoking is affected onl y by current advertising? Could significant tim e lags instead be involved? Could a surgeon

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general's report o r economi c condition s work to reduce simultane ously both advertisin g an d smoking , making the latter appea r t o b e causally linked? There is also the problem o f the direction o f causa tion. Is it possible that a brief perio d o f increased sales , or eve n th e realistic expectatio n o f increase d sales—perhap s fo r economic , demographic, o r product-developmen t reasons—woul d lea d t o more advertising ? Other studie s ma y either accommodat e thes e concern s o r sho w them t o be inconsequential. If, however , the Supreme Cour t contin ues t o impos e evidentiar y an d proo f standard s o n th e regulatin g agency, the advertisin g restriction s ma y not surviv e i f it is deeme d debatable whether the y significantly promot e th e public interest i n question. If the evidence linking tobacco advertising and teen smok ing is at least inconclusive, the Supreme Cour t ma y send the regula tory agency back to the drawing board . None o f thi s comple x an d occasionall y heate d inquir y int o th e causal relationships between advertising and health should be necessary. Our politica l cultur e recognize s a role for bot h symboli c poli tics and causall y effective, empirica l problem-solvin g policies , but the latter i s more commonl y the focu s o f ou r attention . As a pragmatic, achievement-oriented people , we usually prefer that problem s be solved rather than , say, some emotion b e expressed, sympathy be conveyed, or vows of solidarity be undertaken . Our publi c health goa l in this area is to persuade young people, if not thei r elders , to choose not to start, or to quit, smoking. There is, however, als o a legitimate supportin g rol e fo r wha t w e migh t cal l expressive policies, as opposed t o pragmatic o r teleological policies. An expressive public policy expresses the public endorsement o r condemnation o f some idea , practice, or stat e of affairs . I f the govern ment condemn s a state o f affairs, th e point o f an expressiv e publi c policy is not necessarily to eliminate or even mitigate the condemne d

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state of affairs. Instead, it is mainly to express disapproval, to dissociate the government from th e state of affairs, or to refuse t o give legitimacy to the disapproved stat e of affairs. Ther e is an analogy here t o expressive theories of criminal punishment . By analogy, a disgruntled citize n migh t cas t a blank ballot i n a n election i n orde r t o expres s his disapproval o r to avoi d legitimizin g the choices , without havin g any real intention t o affec t th e electora l outcome. Similarly , a governmen t policy , eve n on e involvin g a restriction o n private speech, could reasonably be motivated by similar expressive concerns. With respec t to tobacco, the intent o f restrictions o n advertising , particularly that targeted t o large numbers o f young persons, migh t be largely symbolic, expressive, or deonti c rather tha n pragmati c o r teleological. Th e restriction s nee d no t b e intende d t o chang e th e behavioral landscap e directl y and significantly . Rather , the primar y idea migh t b e t o mak e a modest, i f no t defeatist , statemen t alon g roughly the following lines : Even if the causa l relationships betwee n advertising and tobacco consumptio n ar e unclear, it is irresponsibl e for tobacco sellers to risk the basic health, or possible addiction to an unhealthy substance, of large numbers of even voluntary consumers, whether or not those consumers are of legal age. The focus her e is on the sellers' irresponsibility in the form o f th e merely arguable , a s oppose d t o demonstrable , healt h harm s o f advertising, precisely in order to avoid a currently inconclusive battle over th e empirica l evidenc e o n a possibl e connectio n betwee n tobacco advertising and an y actual harm t o health. Note that adver tising can be irresponsible eve n if the effect s allegedl y flowing fro m that advertisin g ar e themselve s no t certain . Fo r example , i t i s clearly—and no t merel y arguably—irresponsible t o sta b someon e who ma y already be dea d o r be o n th e poin t o f dyin g of unrelate d causes. That is , risky behavior ca n be irresponsible eve n i f it turn s

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out later that n o harm was actually even possible. Likewise, governments may, in some cases, both prohibit irresponsible tobacco adver tising behavior with an eye to reducing possible medical consequences and also simply to express through suc h prohibitory legislation thei r condemnation o f such irresponsible advertising behavior, whether o r not the prohibition is effective i n reducing the harms of smoking. When suc h condemnatio n take s th e for m o f a prohibitio n o f speech, the practical effec t o n th e speaker o f an expressiv e condem nation o f irresponsible advertisin g is largely the same as it would b e in th e cas e of a merely risk-regulatory speec h prohibitio n withou t any specia l o r additiona l expressiv e purpose . I n tha t sense , th e expressive condemnatio n add s little to the advertisin g prohibitio n itself. The possible health risk underlies the regulation i n both cases. But it may be morally important fo r government s t o emphasiz e th e expressive, as opposed t o the pragmatic risk-regulatory , dimensio n of the prohibition, and i t certainly is important fo r governmen t reg ulators to shift th e focus awa y from whethe r tobacco advertising ca n be clearly linked causally to any of the harms of tobacco. Can i t be sai d tha t thi s mainl y expressive restrictio n o f tobacc o advertising is really a restriction, based on viewpoint, of commercial, if not political , speech? Does such a restriction merel y impose offi cial sanction s o n disfavore d commercia l ideas ? Shoul d expressiv e restrictions o f tobacco advertisin g receive rigorous judicial scrutiny ? It i s tru e tha t restrictin g tobacc o advertisin g limit s commercia l speech, whether or not we call the legal restriction expressive . But we cannot clai m that restrictin g tobacco ad s amounts simpl y to coun terspeech on the same subject. Without taking into consideration th e government's purpose in restricting the speech, most valid commer cial speech restrictions have predictably adverse impacts o n the ide a that th e product i n questio n shoul d be used. Any required warnin g label on a product, for example , undercuts th e idea that the produc t

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should be used casually . No commercia l o r an y other sor t o f speec h restriction i s idea neutral, but that is hardly the decisive point . The expressive restriction o f tobacco advertisin g is instead aime d not simpl y a t a disfavored ide a itsel f but a t marketin g practice s o r commercial speech or conduct that a government is reasonably justified i n considerin g risk y o r sociall y irresponsible , i n th e sens e o f marketing tha t ma y involv e frequent , extremel y serious—i f undemonstrable—harms wit h n o proportionat e socia l benefit. B y analogy, to condemn without legally barring the selling of dangerou s fireworks t o children , eve n i f the advertisin g itsel f i s banned, i s to condemn a behavior rathe r than , or at least as much as , an idea. The refusal, fo r pragmati c o r othe r reasons , to criminaliz e tobacc o sale s does not ad d t o the social responsibility o f such sale s or undermin e the government' s righ t an d powe r t o issu e suc h a regulatory con demnation. Again, noncommercial speec h endorsin g tobacc o con sumption nee d not be affected . The governmen t woul d b e makin g a clearer, mor e unequivoca l statement i n thi s regar d i f i t chos e t o prohibi t tobacc o sale s alto gether. Again, the actua l effectivenes s i n practice o f such a prohibition woul d no t b e centra l t o th e messag e conveyed . Indeed , th e clarity of such a statement would be enhanced by simply not feder ally subsidizing the growing of tobacco, whatever taxes might also be imposed at some stage. The failure to prohibit all tobacco sales, however, or even to end tobacco-growing subsidie s need not hamper th e expressive message sent by restricting tobacco advertising . We all appreciate certai n realities , whether political , economic, or physiological. I t thu s nee d no t b e hypocritica l o r inconsisten t t o acknowledge the practical impossibilit y of seeking to impose a Prohibition-style ban on tobacco sales while at the same time condemn ing as irresponsible th e willingness o f tobacco seller s to arguably , if not provably , jeopardize th e healt h o f eve n thei r originall y freel y

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consenting adul t customer s throug h advertising . One appropriat e way to condem n thi s irresponsibility would b e through somethin g like the prohibition, o r mere regulation, of tobacco advertising , perhaps in general-circulation magazines . Earlier restriction s o n tobacc o advertising , including televisio n bans and required health warnings, can be seen as conveying simila r messages. Sometimes, however, such messages lose even their purel y symbolic o r expressiv e powe r because the y become familia r o r ar e treated with disdain . A new vehicle for th e basically similar messag e thus becomes necessary. We might als o consider th e industry's con tinuing disregard o f a prior messag e as a new and differen t mora l o r social offense, requirin g a new and differen t governmen t response . We might, by analogy, consider undul y loud musi c a s one offens e and the owner's refusal t o turn dow n the volume as a second. Thus th e governmen t migh t choos e t o view the tobacco sellers ' continuing advertisin g practices—despite th e conflictin g evidenc e regarding advertisin g an d consumptio n an d th e accumulatin g evi dence regardin g healt h an d addictivity—a s a ne w an d differen t offense requirin g a distinct response , perhaps alon g the lines envi sioned by the FDA. Or mor e simply , the government migh t reason ably view colorful ad s in mass-circulatio n magazine s a s a separat e irresponsible act , eve n i f n o wors e tha n som e othe r activities . According t o thi s view , restrictin g colo r ad s i n mass-circulatio n magazines would b e a n appropriat e governmenta l respons e t o jus t this one irresponsible practice. Consider som e possibl e response s t o thi s expressiv e regulator y approach. First, to those people use d to purely pragmatic justifica tions i n narrow-tailorin g inquirie s b y th e courts , thi s approac h seems lik e cheating , lik e refusin g t o g o alon g wit h th e game . Th e usual justificatio n fo r a restrictio n o n speec h i s suppose d t o b e empirically disprovable , wit h th e regulate d part y havin g a goo d

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chance to show that th e regulation doe s not serv e its purpose effec tively o r i s no t tailore d narrowl y enoug h t o d o so . It thu s seem s unsporting a t best if the government allege s mainly an expressive o r condemnatory interest an d indeed one that, given a modest founda tion i n the social science evidence, by design fit s precisel y the com mercial speech practice being restricted . It is not hard to carry out one's expressive or condemnatory inter est. Usually, one actually condemns what on e also publicly, officially , and explicitl y condemns , whethe r on e merel y condemn s o r con demns throug h lega l restriction. This condemnatio n ma y thus no t allow the customar y roo m fo r counterevidenc e o f ineffectiveness . The governmen t ma y be enunciating—i n th e languag e o f Britis h philosophers—a performative , a s in promising o r vowing. Used i n the right circumstances , performatives ar e often difficul t t o rebut. If the government say s "we hereby condemn practic e P " or "we hereby condemn a s irresponsible th e color advertisin g o f tobacco i n mass market magazines, " it actually is condemning thes e practices. There is not muc h roo m t o argu e that despit e its expressed intentions , the government ha s failed t o so condemn o r that the fit is wrong. Again, that n o on e i s provably deterre d fro m smokin g o r that n o har m i s provably avoide d b y such condemnatio n i s irrelevant t o thi s pur pose. Rather, the irresponsibility a t issue is in running som e signifi cant risk that one' s advertising and an y possible sales attributable t o such ad s ar e harmful . A s long a s there i s som e evidenc e o f a lin k between tobacc o advertisin g an d health , the cas e is roughly akin t o regulating commercial speech touting a product that may well—but may not—blow u p in the consumer's face . Suppose tha t th e purpose o f the regulatio n i s to condem n vigor ously by means o f a binding restrictio n o n commercia l speec h or t o dissociate a government fro m a sales practice o r smokin g itself, and not necessaril y t o motivat e anyon e t o qui t o r refus e t o tak e u p

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smoking o r t o improv e publi c healt h i n an y provable way. Can w e say that suc h a governmental justification fo r restrictin g commercia l speech i s both legitimat e an d sufficientl y important ? Certainl y th e tobacco seller s can den y either th e legitimacy o r th e weight o f th e merely expressive government interes t a t stake. But these argument s are actually less favorable, from th e tobacco sellers ' standpoint, tha n the standar d claim s that advertisin g restriction s canno t b e demon strated t o b e effectiv e i n significantl y reducin g smokin g o r tha t other, mor e narrowl y tailore d mean s o f achievin g tha t pragmati c goal are available. A government migh t i n some sense condemn tobacc o advertisin g without als o legally regulating it . But we are assuming tha t ther e i s evidence suggestin g tha t tobacc o advertisin g i s linked t o tobacc o consumption levels . For a government t o condemn without regulat ing is therefore bot h to condemn i n a different, arguabl y less serious, way and t o fail to addres s pragmatically this possible, if unprovable , causal link to bad health . In most cases , the tobacco companie s ca n reasonably disput e th e complex empirical evidenc e regarding advertising and tobacco con sumption. When th e government i s intent o n provin g that advertis ing increases tobacco consumption , the uncertainties i n the evidenc e accrue to the tobacco companies ' favor. They can also argue that less speech-restrictive approaches , such as more rigorous enforcement o f current laws against sales to minors or school tobacco education programs, would b e just a s effective an d ar e therefore constitutionall y required. In the case of the FDA regulations, the tobacco companie s could poin t ou t tha t advertisin g would be restricted i f it is available to population s tha t ar e 1 5 percent youn g person s an d 8 5 percen t adults—or a ratio of more than five adult potential viewers for ever y child potential viewer. Why would a court generally unsympathetic to commercial speech restrictions choose to view this arbitrary rati o a s

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reasonably narrowly tailored t o protect childre n an d young adults ? Why not som e different, clearl y less restrictive, ratio? By contrast, consider th e tobacco seller s having to argue, first, the illegitimacy of the government' s regulator y condemnatio n o f thei r behavior a s reckles s o r irresponsible . I t i s difficul t t o se e tha t th e tobacco seller s ar e o n thei r stronges t groun d o n thi s point . Here , merely som e evidenc e o f a link between advertisin g an d th e obvi ously grave medical harm s shoul d suffice . Th e tobacc o seller s ca n contend tha t they are not actin g recklessly or irresponsibly in adver tising in a particular way . But here, the judicial inquiry turns i n par t on th e reasonabl e possibility , no t th e probabilit y o r certainty , o f a link between advertisin g and tobacco consumption level s and o n th e more basic , les s appealin g inquir y int o smoking , addiction , an d health. Recklessnes s o r irresponsibilit y turn s no t onl y o n merel y plausible causal links between ad s and smokin g but als o on the rati o of th e socia l benefit s o f tobacc o t o th e socia l harm s o f tobacco , including disease , addiction, and death . Does the current , or a t least the initial , consent o f their youn g o r adul t buyer s absolv e tobacc o sellers of the charge o f irresponsibility? O r doe s it instead hel p pro vide the occasion for suc h a charge? On this largely expressive battleground, the government nee d no t prove tha t an y tobacc o advertisin g lead s t o tobacc o consumption . Rather, the alleged irresponsibility of the tobacco sellers is in runnin g any significant possibl e risk that this may occur, and this much is hard to deny. The legal debate is thus shifted close r to the merits, or demer its, of tobacco and tobacco selling under present circumstances . If the government cannot , for a variety of practical, physiological, or politica l reasons , reduc e tobacc o consumptio n significantly , i t remains a matter o f moral importanc e fo r th e governmen t t o con demn an d anathemiz e a t least som e form s o f tobacco advertising . Sometimes it is crucial to take a stand despite , if not because of, ou r

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hypocrisies. This may be s o even if we know that th e righ t will no t prevail or that our stand will make no causal difference t o its prevailing o r no t prevailing . B y analogy, w e would nonetheles s expec t a government tha t coul d not en d o r even reduce racial discriminatio n by private actor s t o legall y condemn an d attemp t t o regulat e suc h private discrimination , an d w e would conside r i t a matter o f hig h moral urgency and importance that it do so. This is not t o equat e o r even vaguely compare racia l discrimina tion an d the advertising of tobacco. The point i s merely that ther e is a moral imperative to condemn both that depends, among other fac tors, on the nature and possible or demonstrable gravit y of the associated risks and harms . And i t is difficult t o den y the importance o f the risks and harm s associate d with smoking , however hazy the lin k between advertisin g and consumption . It stil l is possible t o objec t tha t i t is not importan t t o denounc e tobacco i n an y particular way , such a s through restrictin g colo r o r pictorial ad s i n mass-circulatio n magazines . Indeed , i t woul d b e absurd t o claim that i t is important t o condem n th e general evils of tobacco i n exactl y this way and n o other . But this i s not th e issue . Generally, a particular symboli c protest doe s not lose its importanc e once i t is pointed ou t tha t othe r mean s o f symbolicall y protestin g the general harm ma y be available. The clarit y and mora l gravit y of the condemnation—i n genera l an d i n th e particula r cas e o f tobacco—are no t significantl y undercu t b y choosin g on e theme , focus, or venue rather than another . We have seen, though, that the government alread y condemns an d supports tobacco in several respects. The FDA regulation i n questio n is only one more suc h condemnation . Ca n suc h a n additiona l con demnation carr y moral importance ? I t certainly may, both b y itself and in conjunction wit h other condemnations. As we have seen, each form o f condemnation may have a different context , history, function ,

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and purpose . Even i f identical languag e i s used, condemning lou d music for th e second time typically carries a message different fro m that conveye d th e firs t time . In the cas e of cigarett e advertising , th e moral an d socia l stakes are so high tha t almos t ever y dimension o f cigarette advertising , especiall y th e mos t widel y noticed , wil l b e important. Thus there ma y be real sense and a defensible logi c in regulatin g tobacco advertisements on expressive grounds, even if we pessimistically assume that the number o f smokers and their smoking histories are beyond ou r abilit y t o affec t throug h advertisin g regulatio n o r even that additiona l advertisin g restriction s migh t ad d to the allur e of smoking . Tha t is , expressive statement s ma y b e wort h makin g even i f they ma y mak e thing s somewha t wors e i n practica l terms . Using another analogy , an act of civil disobedience might be morall y permitted, i f not required , eve n i f its only consequence was to pro voke retaliation . Modern governments , of course, do not remai n i n power by providing only a steady diet o f symbolism. It is useful fo r government s to take a range of antismoking initiative s with the intention o f actu ally reducing smokin g amon g childre n an d adults . We should, how ever, consider recen t Canadian judicial experience as something of a cautionary tal e i n thi s regard . Court s generall y unsympatheti c t o restrictions o n commercia l speec h ar e often abl e to develo p suffi cient grounds , unde r curren t constitutiona l tests , to strik e dow n serious limitations on tobacco advertising . The crucia l Canadia n cas e i s RJR-MacDonald, Inc. v . Attorney General.41 Here , the Canadia n Suprem e Cour t addresse d a statut e that prohibite d tobacc o advertisin g i n Canadia n medi a bu t no t i n foreign publication s sol d in Canad a an d tha t restricte d th e promo tion o f tobacc o products . Unattribute d healt h warning s wer e required t o be placed o n tobacco-produc t packaging . In response ,

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the Canadian Suprem e Court issued a total of seven opinions that in their cumulativ e impac t sorte d ou t the restrictions, upholding som e and striking down others . The cour t wa s willin g t o conced e th e genera l importanc e o f reducing tobacc o consumptio n an d it s associate d advers e healt h effects. Furthermore , i t wa s no t undul y trouble d b y th e comple x empirical problem o f a causal link between tobacc o advertisin g an d consumption, generall y requiring onl y a demonstration o f the rea sonableness o f believin g i n som e suc h connection . Ther e i s littl e indication, i n contrast , tha t th e Unite d State s Suprem e Cour t i s inclined to be similarly deferential . The mos t importan t constitutiona l proble m fo r th e Canadia n Supreme Court , then , was not th e failur e t o demonstrat e tha t th e public interest was actually being substantially promoted b y the regulations. Instead—and her e following th e U.S. pattern—the Cana dian Suprem e Cour t wa s mor e concerne d wit h issue s o f narro w tailoring, or degre e o f fit betwee n th e scop e o f the regulation s an d the promotion o f the public interest i n health. In som e respects, the court held, the regulations were unduly and unnecessaril y intrusive , in that other , less speech-restrictive measure s migh t hav e similarl y promoted th e public interest at stake. The problem i s that the government typicall y bears the burden o f proof o n th e issu e o f narro w tailoring . I t als o i s often a matter o f barely constrained discretio n whether a court chooses to believe that some supposedly effective an d less speech-restrictive mean s o f pro moting th e publi c interes t i s available. On th e basi s o f conjectur e alone, the courts often assum e that a more narrowly tailored alterna tive does exist, and it is difficult fo r a government to anticipate all the possibilities that ma y occur t o a court, let alone convincingly rebu t all of them empirically , in some nonspeculative way. In the Canadia n case , the Canadia n Suprem e Cour t foun d mea sures such a s a prohibition o n the distribution o f free sample s to b e

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justified, bu t i t struc k dow n th e mandator y unattribute d healt h warnings. The cour t als o struc k dow n a statutory ba n o n placin g tobacco trademarks o n nontobacc o products , finding thi s ban t o b e unrelated t o the statutor y purposes. The cour t als o objected t o th e breadth o f the advertising ban, asserting that purely "informational " advertising shoul d no t b e caugh t u p i n th e sam e ne t a s "lifestyle " advertising o r with advertisin g clearl y geared to underage smokers . Advertising that promotes low-tar cigarette s o r that merely remind s consumers o f a package's appearanc e als o seemed to the court t o b e relatively innocent o r otherwise justifiable . These example s shoul d sho w both th e arbitrarines s and , i n thi s case, the typica l hopelessnes s o f an y inquiry int o th e degre e o f th e tailoring o f tobacco advertisin g regulation . We can easil y imagin e why tobacco logo s on glamorou s o r fashionabl e nontobacc o prod ucts migh t b e reasonabl y though t t o ris k glamorizin g tobacc o b y association. This risk is hardly alien to the statute's purpose. Some, presumabl y les s sophisticated , citizen s migh t wrongl y ascribe to the manufacturer an y unattributed healt h warnings . It is unclear, however , wh y thi s incorrec t ascriptio n i s assume d t o b e more speec h restrictiv e overal l tha n a health warnin g specificall y attributed t o the government . Havin g words pu t i n one' s mouth i s not the only way of having one's speech restricted . This matte r is , afte r all , partl y empirical . T o som e people , a n unattributed healt h warning migh t mea n tha t th e sellers were criti cizing their ow n product . Bu t i f they believe that th e warning wa s initiated b y th e seller , wh y no t giv e th e selle r credi t fo r candor ? More important , wh y i s it though t t o b e les s intrusiv e t o requir e sellers to print healt h warnings that serv e as the official governmen t condemnation o f th e safet y o f thei r product ? B y analogy , tria l lawyers usually prefer t o introduc e advers e fact s themselve s rathe r than have a judge do so. Consequently, whether unattribute d healt h warnings ar e more o r less intrusive tha n explicitl y official warning s

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are is not obvious . A credible, neutral, expert, official denunciatio n can cut rather deeply . It also is an empirical matter whether purely informational adver tising promotes smokin g less efficiently tha n doe s lifestyle advertis ing, even assumin g th e tw o ca n b e judicially distinguished . I f on e accepts the view that low-tar cigarette s tend to be smoked mor e fre quently o r mor e deepl y or that thei r availabilit y discourage s quit ting, then allowin g the advertisin g o f such cigarette s will entail rea l health risks . Suc h narrow-tailorin g decision s thu s involv e rathe r complex judicial second-guessin g o f government judgment s abou t their empirica l effects . Conside r a presumably purely informationa l advertisement tha t read s simply: "Cigarettes: two packs for a dollar." Can we really say that i t is unreasonable t o imagine tha t suc h stee p price-discount advertisin g migh t promot e sale s at least a s much a s "lifestyle" advertising does ? Is it clear that pervasiv e informationa l advertising woul d probabl y no t legitimiz e smokin g o r discourag e one from quitting ? The narrow-tailorin g inquir y ca n b e continue d indefinitel y b y unsympathetic courts . Suppose tha t th e regulator y respons e t o a prior cour t rulin g i s a new prohibition o f onl y "lifestyle" advertis ing of tobacco. Is it beyond th e capacitie s o f tobacco seller s to con tend tha t som e identifiabl e form s o f lifestyl e advertisin g ma y b e less effective tha n other s in promoting harmful behavio r an d ar e in fact n o wors e tha n som e alread y approve d "informational " adver tising? Why shoul d w e assume tha t al l lifestyle advertisin g consti tutes a unique, narrowl y tailore d categor y no t subjec t t o furthe r division? Why no t insis t o n tryin g mor e elaborat e tobacc o educa tion program s o r mor e rigorou s enforcemen t o f existin g sale s restrictions? At this point, those who want to regulat e tobacco ad s may eithe r develop expressiv e argument s lik e those just describe d o r b e pre -

Tobacco an d Patronizin g Speec h • 10 1

pared t o continu e t o pursu e th e mor e standard , i f problematic , strategies. In eithe r event , i t i s importan t no t t o los e sigh t of , an d thereb y patronize in one way or another, tobacco consumers a s they actuall y live thei r lives . Let u s therefor e tur n briefl y t o th e economi c an d social circumstances o f actual smokers. In particular, let us return t o the class, as opposed to the age, dimension o f tobacco consumptio n and tobacco-advertising regulation . Smoking i s not just a pharmacological phenomenon ; i t als o ha s important cultura l and historical dimensions. Consequently, peopl e smoke a t differen t rate s i n Franc e an d i n Vietnam, an d American s smoke a t differen t rate s than the y did fifty years ago . Most impor tant, in countrie s suc h a s the Unite d States , Britain, New Zealand , and Canada, there is now an important socioeconomi c dimension t o smoking; that is , smoking is no longer a class-neutral phenomenon . Smoking i s now largely a matter o f where on e fit s i n one' s societ y and of one's resources and prospects . Consider som e illustrativ e statistics . I n RJR-MacDonald> th e Canadian Suprem e Court itself referred t o a Canadian stud y indicating tha t i n 1986 , 60 percen t o f person s wh o di d no t atten d hig h school reported smokin g every day, whereas a mere 8 percent of persons with a university degree did so. This is both a striking figure and a striking development. Educational level is now plainly a significan t consideration, but the phenomenon i s even broader. Smoking is now increasingly correlated wit h lower socioeconomi c statu s i n general . Smoking i s twice a s common i n th e lowes t Britis h socioeconomi c class as in the highest. 5 This patter n show s tha t th e highe r socioeconomi c classe s hav e changed thei r behavio r fo r th e better bu t tha t th e lower socioeco nomic classes have not. In the late 1940s , nearly 80 percent of British

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men smoked . Then, over roughly the past twenty years, more afflu ent Britis h citizen s roughl y halved thei r smokin g rat e fro m abou t four i n te n t o tw o i n ten . Over th e sam e period, however , roughl y half o f the poorest Britis h citizens smoked, despite the proliferatio n of health warnings. More particularly, a number o f relate d factor s see m t o correlat e with smoking in present-day Britain, among which are being a single parent, having limited education , having a blue-collar job, receiving means-tested welfar e benefits , bein g unemployed , an d livin g i n a rental property. These differentia l smokin g rate s indicat e no t onl y that differen t group s begin smokin g a t changing rate s but als o tha t the more affluent group s give up smoking in greater numbers . Roughly similar patterns ca n be found i n the United States . One complication i s the finding tha t those with fewe r tha n eigh t years of school tend to smoke less than do those with more education but tha t smoking generally correlates negatively with education for those with at least nine years of education. One study estimates that by the year 2000, the overall smoking rat e in the United State s will be about 3 0 percent fo r thos e with a high schoo l education o r less and abou t 1 6 percent, or roughly half that rate, for those with at least some college. Smoking i n th e Unite d State s i s highes t amon g thos e wit h incomes below the poverty line, even though smokin g means paying heavy regressiv e taxe s o n tobacc o an d sometime s postponin g o r doing withou t necessities . The influenc e o f socioeconomi c statu s more generally on smoking in the United States is substantial. Smoking varies—at least fluctuates—in regar d to age, race, sex, and geography, but th e difference betwee n th e smoking rate s of white-colla r and blue-colla r worker s was found t o be greate r tha n tha t fo r an y other factor. 6 As in the British case , these differences sho w that people a t lower income o r educationa l level s hav e no t joine d thos e wit h mor e

Tobacco an d Patronizin g Speec h • 10 3

income o r educatio n i n reducin g thei r smokin g rate s ove r tim e a s the dangers o f smoking become mor e widely publicized. The inter esting questio n is , why not? Although w e cannot full y answe r thi s question, we can suggest a partial answe r that i s flattering t o neithe r the cigarette sellers nor the current governments . Cigarette sellers have a vested interest i n assertin g that th e choic e by the less affluent t o begin an d t o continu e smokin g i s a fully fre e and voluntary choice, reflecting a preference fo r the smoking lifestyl e as opposed t o the nonsmoking lifestyle . The smoking lifestyle i s not the leas t risk y lifestyle, but neithe r i s a freely chose n bu t relativel y dangerous occupatio n o r hobby . We do no t loo k askanc e a t thos e who, after calculatin g the costs and benefits, become skydivers , rock climbers, auto racers, or firefighters. Naturally, these arguments appl y most directl y to adult smoker s themselves an d no t t o unconsentin g third parties, such as dependent minor family members. Governments, o n th e othe r hand , normall y trea t tobacc o con sumption a s a problem of the user's ignorance, naivete, or seduction . The theory, however rarel y articulated, mus t b e that a t som e level, the less affluent ar e unaware of the crucial health risks of tobacco o r that the y have somehow been manipulate d b y clever tobacco adver tising into sacrificin g thei r basic health interests . The government' s answer consist s mainl y o f consume r educatio n abou t healt h risks , targeted a t eithe r th e genera l publi c o r particula r demographi c groups, alon g wit h increasin g restriction s o n tobacc o advertisin g and some encouragement o f groups and techniques oriented towar d quitting smoking . Neither th e tobacc o sellers ' nor th e government' s perspectiv e i s completely convincing. The general risk of smoking's leading to disease and/o r prematur e deat h ha s been widel y known b y all socia l classes fo r som e time . Even before th e firs t U.S . surgeon general' s report, cigarette s wer e popularl y referre d t o a s "coffin nails, " an d

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their likely health effect s wer e broadly disseminated b y popular cul tural figures such as Merle Travis. At the same time, however, celebrities also endorsed the benefits o f smoking. Furthermore, people have a tendency t o underestimat e unspectacula r o r unreporte d risk s o f dying. Bu t a t thi s point , a larg e percentag e o f smoker s i n ever y socioeconomic clas s recognizes that smoking i s associated with dis ease. In fact , many persons actuall y overestimate th e risk s of devel oping lung cancer. A government migh t conside r arguin g tha t les s affluent person s focus disproportionatel y o n short-ter m considerations , unduly discounting the harms of smoking over the long term. Actually, it is not clear that th e middle clas s and th e governments themselve s ar e an y less oriented towar d the short term, if we look at the retirement sav ings practices of the middle class and the budgeting practices of governments. And remembe r tha t poore r peopl e pay higher immediat e costs in smokin g tha n d o better-off people . For poorer people , th e opportunity cost s o f smokin g ma y mean , say , the los s o f a varie d diet, a s oppose d t o th e les s sever e trade-off s i n smokin g face d b y more affluent persons . Perhaps governments could contend that the problem with tobacco is mainl y on e o f nicotin e addictio n an d tha t socia l an d economi c classes differ i n how they think abou t the nature an d risk s of addiction. Perhaps the less affluent d o not full y appreciate what it is like to be addicte d o r the genera l likelihood o f addiction , o r perhaps the y irrationally exempt themselves from th e risks of addiction. Perhap s the poo r ar e disproportionatel y confuse d abou t thes e matters . Fo r instance, can poorly educated people explain what carbo n monoxid e or emphysema is, terms used in government health warnings? No doubt, some social science surveys can find poo r peopl e wh o think i n jus t thes e ways . But ther e i s somethin g unrea l o r a t leas t incomplete about such arguments. A sense of personal invulnerability,

Tobacco an d Patronizin g Speec h • 10 5

of dispensation fro m ris k and harm , or o f control ove r one's futur e actions an d outcome s ma y b e characteristi c o f youth , bu t no t o f poverty. The poor may, for one thing, be more direct witnesses to the ravages of illegal drug addiction tha n man y of the economically better-off are . More important , though , the life experience s o f the less affluent hav e taugh t the m lesson s tha t contradic t an y ideas abou t being abl e t o contro l one' s fat e o r abou t persona l invulnerability . They do not believ e that povert y exempt s the m fro m persona l suf fering o r il l health . I f poo r smoker s clai m tha t they , unlik e othe r smokers, wil l no t becom e addicted , thi s ma y reflec t dissonanc e reduction, rationalization, o r a touch o f bravado. What els e can on e say to an interviewer ? In fact , man y o f th e economicall y les s fortunat e hav e learne d lessons tha t migh t b e couche d i n opposit e terms , under heading s such a s fatalism, pessimism, and a sense of lacking control, whether or no t suc h conclusion s sho w up o n th e socia l science surveys. The less well-off ar e usually aware of their general class position an d economic prospects. Another proble m the y face i s that rulin g govern ments usuall y d o no t wan t t o acknowledg e idea s o f fatalism , pessimism, or powerlessness among the less affluent . Some people may find nicotine or the rituals and patterns associate d with tobacc o t o be relaxing, stress reducing, or stimulating . But we must loo k beyond thes e physiological effects . Give n the stresses an d hardships associated with limited education , low income, single parenthood, or unemployment, smokin g may serve as a coping mecha nism or a way to change one's mood. For other people, smoking may be a legally permitted rebellio n agains t fate or public indifference. I n fact, tobacco, like alcohol, may actually have rather limite d positiv e effects o n one' s ability to cope . One ma y soon smok e more becaus e of addiction than because of any continuing free choice. We have not

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yet seen a fully though t ou t an d convincin g fre e speec h theor y fo r speech tha t promote s addictiv e products . Contrar y t o wha t th e tobacco sellers may claim, for man y persons, the first cigarett e of the day—or th e firs t cigarett e afte r hear t o r lung surgery—i s no t lik e deciding to g o rock climbin g o r eve n like deciding agai n to no t sel l one's car. The biochemistry o f quitting, or o f striving repeatedly t o quit, is different fro m settlin g into a routine o r resistin g it s disrup tion. In an y event, even a n ineffectiv e copin g mechanis m i s still a coping mechanism, an d th e physiological o r psychological reward s of smoking can be real. The les s well-off ar e capabl e o f realisticall y assessin g thei r cir cumstances. The y ma y se e themselve s a s havin g les s t o los e b y smoking than d o the economically better-off, who tend to be in better genera l healt h anyway . Ther e i s a differenc e betwee n retirin g with a numbe r o f productiv e year s remaining , bein g financially comfortable, being in good health, and holding a position o f publi c esteem an d respect—an d th e opposite . This is not a matter o f irra tionally discounting the future i n favor o f the short term or of being seduced by clever tobacco advertising. Instead, it is more a matter o f recognizing th e rea l differences i n the opportunit y cost s for differ ent socioeconomic groups. For some people, there is a less attractive future, an d less of it, to discount . We need no t g o so far a s to suppose that an y member o f any economic clas s thinks o f smokin g a s a form o f slow-workin g suicide . Describing smokin g i n suc h dramati c terms , however, doe s sho w why neither mos t government s no r tobacc o seller s ar e inclined t o think realistically about tobacco and people's motivations to smoke. What public policies would be necessary, then, if governments reall y wished t o reduce smoking by the less well-off? Thos e who ar e inter ested i n lowerin g th e rat e o f smokin g b y th e les s affluen t d o no t

Tobacco an d Patronizin g Speec h • 10 7

object to the standard antismokin g policies and programs proposed . Nonetheless, because heavy excise taxes on tobacco ar e paid dispro portionately by the poor, those tax revenues should be earmarked fo r the benefi t o f suc h groups , as opposed t o th e broade r public , in a reversal of the Robin Hood legend . Some demographi c an d cultura l subgroup s withi n th e lowe r socioeconomic classe s do smok e less than others . But government s are limite d i n thei r abilit y t o encourag e thes e subgrou p pattern s through publicit y o r by restricting anyone' s speech . At some point , governments must face the consequences of economic class structure and d o somethin g mor e expensiv e than restrictin g th e commercia l speech o f tobacc o sellers . Governments mus t actuall y redistribut e opportunities, resources, and prospects i n a way that favor s th e less fortunate. Simpl y put, poor peopl e mus t b e mad e t o fee l tha t the y have more to lose from smoking . This is an expensiv e proposition. The moral cas e for substantiall y expanding th e opportunitie s an d resource s availabl e to the poo r i s much large r an d mor e powerfu l tha n th e subjec t o f tobacc o ca n encompass by itself. If there is any basis for optimis m regardin g th e narrow issu e of smoking an d th e poor , it is the evidenc e that fairl y modest improvements in life circumstances are associated with mea surable decreases in smoking rates. There should be no doubt , how ever, that the required public investment is greater than merely some modest furthe r restriction s on tobacco advertising .

The Commercia l Colonization o f the Interne t We're all so fli p an d thin k we'r e s o smart . There'd be—a fellow like Dante—I wish I'd read som e o f hi s pieces . I don' t suppos e I ever will, now.

c h a p t e r t h r e

e

Ordinarily, we do no t thin k o f th e Interne t a s the embodimen t o f commercial values. But some elements of the "traditional" or "original" Interne t cultur e ar e conduciv e t o th e cultur e o f buyin g an d selling. Consider, fo r example , the freedo m an d plasticit y o f one' s Internet identit y or identities . The real, non-cyber, world, or "meat space," tends t o consig n u s to standar d categories . Those who are , say, young o r Asian o r femal e o r disable d ar e readily identified an d perhaps eve n stereotyped . I n cyberspace , however, we can reinven t or disguis e ourselve s accordin g t o ou r purpose , and w e can assum e 108

The Commercia l Colonizatio n o f th e Interne t • 10 9

or construc t variou s identities . Finally, authoritarianism an d rigi d inflexibility have always been disfavored i n cyberspace. Once we have assumed a n Interne t identity , we can establis h ou r Internet relationship s o n that basis. But since Internet identitie s ca n be discarded, perhaps ou t o f boredom o r distraction , as fast a s they can be assumed, many such Internet relationships carr y certain con tingencies. Internet relationship s typicall y do no t requir e commit ment an d s o often ma y lack a sense of depth, seriousness, and eve n subtlety. Perhaps because of the sense of plasticity of identity, impersonality, abstractness, an d eve n anonymit y i n som e Interne t rela tionships, they offer a temptation t o coarseness and disinhibition . The point i s not that these developments shoul d be seen as undesirable. Rather, these Internet cultura l phenomen a see m t o paralle l features o f ou r curren t commercia l advertisin g culture . Althoug h commercial advertiser s d o no t lightl y cas t asid e long-establishe d brand identities , they are continually repositioning , updating , an d refocusing thei r images . Why Cok e i s better tha n Pepsi—o r vic e versa—is, afte r all , largely a matte r o f arbitrar y construction . I n advertising, too, boredom an d distractio n ar e negative motivators . The relationship betwee n advertiser s an d consumer s i s not charac terized by depth, seriousness, and permanence. Given the need to be noticed amid the clutter of ads, a gratuitous coarseness of tone is not unknown i n commercia l advertising . In addition , authoritarianis m and rigidity are no longer widely effective marketin g techniques. For these reasons, and certainl y for th e more structura l an d basi c economic reason s discusse d later , we should anticipat e a generall y commerce-friendly Internet . The commercialization o f the Interne t may be inevitable , but thi s ma y not mea n tha t i t is desirable. Note that we are not advocating the censorship or suppression o f advertising or othe r commercia l speec h o n th e Internet . Indeed , censorin g the basic commercial messag e of a major sourc e of Internet fundin g

I 1 0 • Th e Commercia l Colonizatio n o f th e Interne t

is probabl y infeasibl e or , i f no t infeasible , woul d likel y lea d t o a stunted, less interesting Internet . In addition , there i s a sense in which man y if not al l commercia l encounters o n th e Internet ar e voluntary transactions between con senting adults . As a general rule, clicking is up to individua l discre tion. If one wishes, one can spend hours at a time on the World Wide Web, without bein g seriousl y distracte d b y prominent unsolicite d advertising. The issue is not one of attempted censorshi p but of continually reevaluatin g th e rea l cultura l worth , an d particularl y th e cultural costs, of the Internet and its commercialization . Writing abou t th e effect s o f on-line technology and the commer cial culture on eac h other may be premature. Currently, the technology of the Internet an d it s more distinctivel y graphical component , the World Wide Web, is changing rapidly . Both technical problem s and substantive opportunities seem to abound. Cost curves are shift ing. Whether, or how, the problems ar e resolved an d th e opportuni ties realized seems impossible to predict. Much is at stake, in that th e number o f entities supplying and seekin g information o n the Inter net and particularly on the web is continuing to expand . The range of plausible future scenario s runs from collaps e due t o technical problems, war, or sabotage; to stagnation du e to consume r fear, distrust, or loss of interest; all the way through th e nearly uni versal adoption an d displacement o r absorption o f other media. The Internet itsel f ma y b e transforme d int o anothe r sor t o f entit y o r entities. We may unite int o a mutually understandin g an d toleran t global village, or we may wind u p spendin g eve n more o f ou r tim e with people who share our own narrow interests. Most o f what anyon e think s abou t th e future o f th e Interne t is , therefore, likely to be wrong. There are just too man y uncertainties , and th e size s of the uncertainties ar e themselves uncertain . No on e organization i s callin g th e shot s an y longer , an d th e problem s o f

The Commercia l Colonizatio n of th e Interne t • I I I

coordination, collectiv e goods, incentives, externalities, innovation , technology, an d use r psycholog y al l are monumental. Prediction s about, for example , web use in even several years vary greatly, and a t best, an y futur e relationshi p betwee n commercia l we b site s an d commercial sales or profitability i s unpredictable. But al l this uncertainty i s quite usefu l fo r ou r purposes . If wellinformed person s canno t remotel y approach agreemen t o n eve n th e short-term futur e o f commercial activit y on th e web, this may actu ally shed ligh t o n th e importanc e o f commercia l influence s i n ou r culture. If commercial cultur e is truly the most generall y significan t element o f our broader communicativ e culture , we might be able to test and establish its dominance, in at least some crude fashion . No rigorous, controlled test of the importance of commercial culture is possible. It is, regrettably, unclear what turn o f events on th e web would falsif y th e claim that commercialis m i s preeminent. Fur thermore, to assert the relative preeminence of commercialism i s not to clai m that commercia l force s alway s are successful. I n an y event , our broa d commercia l preeminenc e thesi s i s compatible wit h th e failure o f th e commercializin g force s t o transfor m ever y locu s o f human interactio n int o a profit-generating enterprise . The web ma y never become full y commercial , or i t may be only a temporary fad , for a number o f reasons. The broad commercia l preeminence thesi s is thus consisten t wit h a future i n which marketer s becom e disen chanted with th e web or in which web users make most commercia l presences on th e web unprofitable. Thi s might happe n regardles s of the general preeminence o f the commercial culture . Still, some possible cyberspace scenario s confirm o r disconfir m a claim o f commercia l preeminence . I f on e o r anothe r commercia l presence pervades the Internet, including e-mai l an d usene t discus sion groups of, for instance, quantum decoherence, that would be one thing. But if, i n contrast , anticommercial force s ris e up i n rebellio n

I 1 2 • Th e Commercia l Colonizatio n of th e Interne t

on principled grounds , against advertisin g o r even against commer cial web sites and driv e them int o obscurity , that would be another . There ar e othe r possibl e scenarios , o f course , an d probabl y mor e likely ones, between these extremes. We often hav e more confidence i n a theory if we can examine no t only how well the theory ca n accoun t fo r pas t event s but als o ho w accurately it can predict futur e events . It is better t o predict futur e data, we think, tha n merel y to explai n pas t data. 1 Thi s preferenc e may actually rest on a confusion. Offerin g a superior explanatio n o f the past shoul d coun t a s much i n favor o f a theory as does correctl y predicting an unknown future . Bu t in any event, we like to test theories prospectively , althoug h muc h o f wha t wil l eventuall y b e tru e about commercial influences o n the Internet has not yet taken shape. It is sometimes suggested , inaccurately , that i f the Interne t i s in the proces s o f commercializing , i t is doing s o from a prior stat e o f pristine noncommercialization . Th e ide a tha t th e Interne t wa s invented b y scientists wanting t o communicat e amon g themselve s about scientifi c matter s i s an oversimplification . Rather , the Inter net—or mor e likely , some segments o f the Internet—ma y eventu ally be dominated by commercial influences, whether through visua l obtrusiveness, rule writing, traffic management , publicity and huck sterism, subsidy, or prioritization. I f this occurs, we should conced e that commercialization di d not start from zero . Recall that i n a former incarnation , the Internet was operated b y the federal government's Advanced Research Projects Agency (ARPA) and then by the National Science Foundation (NSF) . Heavy government subsidization , i f no t ownership , o f th e infrastructur e lon g required som e limits on unfettere d commercia l promotion. But even at th e earl y stage s o f Interne t use , some traffi c consiste d o f large , high-tech industria l corporation s talkin g t o militar y an d othe r potential customer s abou t thei r products , both curren t an d forth -

The Commercia l Colonizatio n o f th e Interne t • I 13

coming. No doub t ther e i s a difference betwee n presentin g a com pany's ne w technologies t o a potential governmen t custome r an d blatant huckstering . W e d o not , however , clai m tha t eve n i n it s golden age, the Internet was free o f commercial messages. We also do not clai m that the largely noncommercial etho s of th e Internet, and o f the World Wide Web in particular, is not changing . Quite the opposite. In particular, the commercialization o f the web is currently proceeding rapidly on some, but no t all, fronts. Let us look next at a current snapshot o f these rapidly evolving circumstances. The metapho r o f a "range war" between commercia l an d noncom mercial factions o n the web is often used . More illuminating fo r ou r purposes, though, is the idea of colonization. Colonization , after all , implies a n attemp t a t some form o f domination, though no t neces sarily th e physica l displacemen t o r complet e suppressio n o f th e indigenous culture . Instead, th e indigenou s cultur e i s suppresse d only to th e exten t tha t i t is incompatible wit h th e colonia l cultur e and it s interests . An d thi s subordinatio n i s impose d onl y t o th e degree that th e colonial power finds i t practical an d cos t effective t o do so. Colonial powers do not find i t in their interests to colonize all conquerable venues or to deny all local autonomy . So we would not predict that in the future, th e ongoing chatroo m discussions o f quantu m decoherenc e wil l be interrupted fo r unre lated length y messages touting th e virtues o f a particular bran d o f sneakers. This would serv e no one' s interests, commercial o r other wise, even if the discussio n wer e directly or indirectly subsidized b y some commercial enterprise . It will likely be true i n the futur e tha t ads widel y perceive d a s alienatin g o r intrusiv e wil l no t b e wort h showing. We must remember , though, that ove r time—particularl y as user experiences , costs, and demographic s change—wha t Inter net users now regard as intolerable will also likely change.

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The intrusiveness o f a n a d o n th e Internet , a s in the non-cyber world, i s a functio n o f severa l graduall y alterabl e factors . A s th e demographics o f Internet usag e change, the Internet use r sentimen t regarding advertisin g ma y change a s well. The percentage o f users , for example , who ar e interested i n the Internet's hardware an d soft ware and their capabilities primarily for their own sake will probably decrease, an d th e percentag e o f user s who , i n contrast , ar e mor e interested i n genera l shoppin g o r i n quic k acces s to cultura l news , visual materials, entertainment, games , music, or sport s result s will likely increase. As these percentages change , the tolerance o f advertising i n gen eral on th e ne t will likely change, too. Perhaps th e earlie r ne t user s were more receptiv e t o technical ad s for Internet-relate d product s than will latecomers to the net. Resistance to commercialization will likely be differen t fo r differen t sector s o f the net . Even the origina l net use r cannot , a t thi s point , clai m t o fee l shoc k o r intrusion , a s opposed to disdain, regarding ads on the web. The sense of what on e has tacitly authorized b y voluntarily movin g abou t o n th e ne t ca n gradually change, as can the cyberspace ethos of what sorts of solicitation o r other commercial initiatives are permissible. If commercia l enterpris e itsel f become s mor e importan t t o th e net, i n term s o f eithe r organizatio n o r funding , i t wil l likel y b e reflected i n the overall sense of propriety on the net. If commerce i s paying the piper or is enabling many persons to join in the festivities , commerce should—o r a t least inevitably will—call th e tune. Thu s any increase i n commercia l involvemen t i n an d suppor t o f the ne t will legitimize net advertising and other marketing activities. What ne t user s fin d appropriate , o r a t leas t endurable , wil l t o some degree reflect what they are used to. Those used to the absenc e of unsolicite d advertisin g ma y b e startle d b y eve n small , discret e banner ads . And thos e used to banner ad s may be startled by larger

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or flashing, crawling , or movielike ads. Finally, those users who hav e never known anything else might assume that even a carnival atmosphere on the net is simply business as usual and accep t the intrusio n as the norm . The degre e o f Interne t commercializatio n ma y als o reflec t ou r expectations regardin g the equipmen t involved . Some persons cur rently access the web not throug h compute r monitor s bu t throug h their television sets . Perhaps this will eventually make a difference, a t least psychologically. We regard commercials appearing on our television screen as a natural, familiar, legitimate phenomenon. So through some process of association o r generalization, we may, by extension , come to see web commercialization a s similarly legitimate. Net users , regardless o f demograph y o r locatio n o n th e net , ca n become desensitize d t o commercia l presences . Some "diehards" or "purists" may remain resentful , but they could easily be marginalize d as technical elitists, and their real influence ma y wane over time. Consider th e analog y t o th e increasin g commercializatio n o f th e Olympics, of college and professional sport s events, uniforms, arenas, stadiums, and sports broadcasting. The economics of sports, advertising competitiveness, and the broader cultur e all have changed withi n our lifetime. Virtually every moment and square foot of sports-associated time an d spac e are now commercially sponsored . Professiona l sports franchises ca n be named afte r thei r owners ' heavily markete d movies. Occasionally, we notice and decr y this phenomenon, and we may think o f sport s commercializatio n a s a public bad . Bu t i n th e main, we now accept it. How else could we afford t o pay players an d owners millions o f dollars? No singl e step in the commercializatio n process seem s t o b e a dramati c departure . N o forc e o r frau d i s involved. Other team s and othe r sport s behave similarly. Surely one would not want one's favorite team to lose its competitive edge. Let us note merely that this desensitization process occurs gradually.

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As a result, we may wind up with a commercial sports culture, or a commercial Interne t culture , o f whic h w e earlie r woul d hav e strongly, perhaps eve n unanimously, disapproved. Even if all choices and actions on the net are individually free and voluntary, the overall result may be one that man y will find unattractive, or at least woul d have found unattractiv e at the start of the process, before their sensibilities becam e dulle d an d thei r taste s altere d throug h repeate d exposure to commercial influence . No doub t ther e ar e limit s t o thi s proces s o f adaptatio n t o th e commercial. If an y single ste p i n th e commercializatio n proces s i s too dramatic , it ca n be rescinde d an d a t least temporaril y shelved . Maybe nex t tim e th e ste p wil l b e les s unthinkable , precisel y a s a result o f th e earlier , unsuccessfu l exposure . Bu t advertisin g an d commerce will never be permitted t o do whatever the y want, unde r all circumstances. We can probably adjust, fo r example , to some kinds of unsolicite d advertising in our e-mail , especially if we have the option o f remov ing ourselves fro m som e o r al l of the addres s lists. If, o n th e othe r hand, e-mail advertisin g reaches the point tha t peopl e at work or a t home ar e spending a n intolerable amoun t o f time eac h day readin g or deletin g unwanted commercia l solicitations , something will have to b e done . Not e tha t wholesal e unsolicite d advertisin g faxes , a s opposed t o bulk advertisin g mail , have not become acceptabl e ove r time, given the delay s and cost s imposed o n th e recipient s o f jun k faxes. At some point, other element s of the commercial cultur e ste p in to limit commercial excesses. It should not be hard for advertising to find an entering wedge into even som e o f th e leas t commercia l Interne t forums . Consider , fo r example, an on-line group consisting mainly of persons interested i n a particular medica l conditio n o r disease . What woul d thei r reac tions likely be if a pharmaceutical compan y offered t o post relevan t

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scientific, regulatory , an d commercia l new s concernin g th e com pany's products? What i f the compan y deeme d i t in it s interests t o support th e grou p financiall y o r t o subsidiz e Interne t acces s fees , perhaps i n exchang e fo r clickin g o n relevan t ad s o r providin g detailed consumer surve y data? Can w e be sur e tha t th e group' s member s woul d ris e u p indig nantly—conceding a t most that pharmaceutica l firm s wer e entitle d to their ow n web sites but coul d no t intrud e o n preexisting , privat e Usenet groups ? A mor e interestin g conflic t o f interes t woul d b e between th e consumer-cultivatin g pharmaceutica l companie s an d the physician who prefers no t t o discus s with his or her patients th e merits of widely publicized alternativ e treatments . More generally, what Interne t user s will adjust t o depends in par t on th e powe r o f the controllin g image s an d metaphors . Is Interne t marketing like interrupting a family dinner o r a private conversatio n between friends? O r is it more like holding forth i n a public park or on a downtown stree t corner? Could one argue that restricting commer cialization o n th e Internet woul d be an ac t o f social environmenta l conservation, akin to preserving a national park in its pristine form ? Or is principled oppositio n to the commercialization o f the Inter net likely to be seen by new users a s merely stuffy, a sort o f stodgy , old-fashioned, unrealisti c paternalism aki n to a restrictive dress code in a public school ? There i s already some Interne t histor y to dra w on, although cultura l battles o n th e net will not simpl y recapitulat e earlier battles, just as the commercialization o f the net will not sim ply repeat the commercialization o f television o r any other medium . Generally, the developin g ne t cultur e values privacy, but i t also values what it regards as uninhibited, unrestrained discourse . Commercialization o f the ne t will likely proceed furthest—financia l issue s aside—if i t aligns itself with th e libertarianism o f the net . In con trast, commercialization wil l be inhibited t o the extent that i t is seen

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as raising seriou s privac y issues. If, t o tak e the extrem e case , commercial enterprise s insis t tha t the y mus t bombar d al l prospectiv e customers a t will; not allo w attempt s t o remov e one' s nam e fro m their lists ; covertly track users ' habits, finances, persona l data , an d net meandering s withou t thei r knowledge o r consent ; and sel l such knowledge t o al l interested partie s willing to pa y the marke t price , again withou t consent , th e issu e will become on e o f basic privac y and securit y versu s commercialization . Non e o f thes e practices , however, seems essential to the net commercialization process . Can we say that the federal government , as the former sponso r o f the Interne t befor e it s privatization, has taken a neutral positio n i n regard t o commercialize d an d noncommercialize d vision s o f th e net? Conside r th e interestin g remar k o f on e officia l regardin g th e first Federa l Trad e Commissio n (FTC ) crackdow n o n fraudulen t Internet advertising . The director o f the FTC's Bureau o f Consume r Protection, Jodie Bernstein, stated that "cyberspace i s a new frontie r for advertising and marketing" but that "the Internet will not achiev e its commercial potential i f this new frontier become s the Wild West of fraudulent schemes." 2 This statement is not the authoritative administratio n positio n o n the subject , an d i t ca n b e interprete d i n mor e tha n on e way . Th e more culturally neutral interpretation woul d be that users of the ne t should b e abl e to choos e amon g a n uncommercialize d net ; a thor oughly commercialized ne t in which th e ads are not false , deceptive, or misleading; or something in between but whose ads are trustwor thy. The less culturally neutral interpretatio n woul d be that th e ne t should ideall y be more o r less commercialized bu t tha t we will no t reach thi s desirabl e resul t i f fraudulent advertiser s lous e things u p for th e rest . Hence the FTC' s mandate t o chas e after allege d cyber space versions of snake oil and patent medicine sellers for the sake of more respectable trade.

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According t o th e latte r interpretation , th e governmen t seek s t o reduce fraud o n the net as desirable in itself and also as a way of promoting the spread o f commercial interest s o n the net. Even if this is an overreading o f the government's attitudes , there is little reason t o suspect tha t th e governmen t woul d plac e obstacle s i n th e pat h o f those trying to commercialize the net . So why might commercia l enterprise s wan t t o be on the net, an d what might they want to do, given sufficient consume r demand for, or at least tolerance of, their activities? A commercial presence on the net can be simple or elaborate, inexpensive or costly. Ads can appear o n another person's on-line service or off one's own server. An advertising presence can take the form o f a banner with no other link to anythin g of much substance. Or an advertisement can contain text, color graphics, video, audio, interesting hyperlinks, and future enhancements . But i f th e sponsor s o f commercia l we b site s ar e t o mak e the m worthwhile, they will have to g o beyond thes e sort s o f displays . A web ad with bright color s and fairl y decent soun d ma y have, for th e moment, a certain cachet . Bu t onc e th e novelt y wears off , visitor s may notic e tha t th e soun d an d picture s ar e n o bette r tha n thos e associated with a video game or commercia l television. Commercia l web sites must therefor e d o more if they are to pull their ow n com mercial weight over the long term. For commercial viability, web sites must combin e the latest tech nical improvement s wit h imaginativ e interactivity , acros s th e ful l range o f marketin g task s and opportunities . The sit e must b e per ceived a s worth visitin g ove r an d over , even afte r th e novelt y an d superficial appea l have worn off . Fro m th e commercia l enterprise' s perspective, a visit to the site should offe r th e commercial sponso r a range of useful results . Consider th e possibl e corporat e benefit s accruin g fro m a welldesigned, well-integrated we b site. The actual ordering of goods has,

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at least until recently, disappointed the most optimistic expectations, perhaps because o f technical, coordinative, and psychological prob lems in ensurin g the security of Internet signatures , confidentiality , and th e payment process . Ironically, the overal l impact o f this con sumer distrust has not been enormous, given consumers' willingness to give their credi t card numbers to complete strangers at the end of an 800 phone numbe r o r to toss credit car d informatio n int o com mercial wastebaskets. Cyberpayment ma y catch on, of course, when and if people come to trust the process. The issue may be partly psychological—remember tha t ATM machines were available for som e time befor e the y becam e widel y popular . Give n ou r accumulate d experiences wit h ATM s an d debi t cards , however , th e battl e fo r cyberpayment ma y already be largely won. Commercial we b site s ma y be worthwhil e eve n i f n o on e directl y orders from suc h a site, because they can mak e other contribution s to overal l commercial health . A corporation can , through a suitably elaborate site , accomplish a number o f tasks : it ca n dra w u p an d maintain e-mai l custome r lists ; displace or supplemen t other , mor e expensive, traditional form s o f advertising ; keep track o f it s com petitors an d suppliers ; and enhanc e it s recognition an d visibility i n the market . Moreover , eve n i f n o on e order s on-line , th e overal l speed of ordering and of product deliver y may be increased . In addition , some enterprises ca n keep their Interne t store s ope n for busines s twenty-four hour s pe r day , seven day s a week. Interne t stores als o ar e accessibl e aroun d th e world , o r a t least t o al l suffi ciently affluen t customer s wh o spea k on e o f the languages under stood b y th e site . Furthermore , propert y taxe s o n a we b sit e enterprise may be quite low, so entrepreneurs ca n change their business practices, or even their entire business, at little cost. Public relations and knowledge of one's customers should improv e on the Internet. Companies ca n conduct on-lin e product survey s o r

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solicit mor e open-ende d custome r feedback . Custom-tailore d coupons ca n b e generate d an d printe d a t hom e fo r stor e use , o r some item s o f clothin g coul d be custom-tailore d on-lin e fo r thos e willing to participate in the design of their ow n fashions. The idea is to go beyond on-lin e versions of more familiar form s o f advertising . Suppose a bage l make r ha s reduce d th e sodiu m conten t o f it s bagels. Why not publicize that fact on-line , publish recipes, and hav e a nutritionis t availabl e on-lin e t o discus s th e expandin g rol e o f bagels i n a soun d nutritiona l program ? Low-fa t bage l customer s could ge t sympatheti c feedbac k an d usefu l advic e o n dietin g an d weight loss. These suggestions ar e merely improved cyberspac e ver sions of techniques used for many decades. Some sorts of businesses ar e better positione d tha n other s t o profi t from th e Internet . Fo r example , Federal Express an d othe r deliver y services have taken advantage of the Internet by enabling customer s to arrang e fo r shipment s on-lin e an d als o to track package deliver ies on-line. But othe r sort s o f businesses canno t profi t i n the sam e way that Federa l Expres s does . The bagel seller , for example , ma y find tha t onl y retailers , and no t consumers , car e wher e th e bage l delivery trucks ar e a t an y given moment . No r ca n bagel s be taste tested on-line . Consumers o f automobiles ma y or may not appreciat e emotiona l support, bonding, and officia l discussio n groups . It may eventuall y be possible, though, for prospective car buyers to take something like a test drive of an automobil e on-line , as the video gam e technolog y for analogou s pursuit s ha s become quit e sophisticated . Obviously , some key elements o f a traditional automobil e tes t drive, includin g real steerin g an d roa d handling , canno t b e duplicate d behin d th e wheel, or jo y stick , o f one' s browser . High-resolutio n colo r vide o images do not fly onto one's screen at breathtaking speed, at least not yet. But prospective buyers could get some sense of the location an d

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use of the dashboard's features , of the visual elements o f gear shift ing, of the car' s route-mapping an d locatio n systems , of its overal l look and design, and of its internal components . Suppose a hote l want s t o emphasiz e th e luxuriousnes s o f it s suites, its location, or the magnificent vie w from som e of its rooms. This al l could b e don e on-lin e o n th e Internet . Likewise , vacation spots or tourist area s could be advertised i n a similar way. A variety of detailed maps could be made available to be downloaded by interested prospective visitors. The issu e i s no t whethe r i t i s impossibl e t o d o al l thes e thing s without th e Internet . Rather, it is whether i t is deemed worthwhil e for a business to provide these features on-lin e an d whether poten tial customers want to pursue such possibilities on-line . Consumers ma y als o fin d meri t i n technicall y sophisticate d responses to competing commercia l enterprise s o n the net. Suppos e a consume r wishe s t o bu y ticket s t o Aida, replac e contac t lenses , arrange fo r a hotel room i n Pal o Alto, fill a prescription fo r tetracy cline, or find a new translation o f Homer's Odyssey through a n on line source . Mos t prospectiv e customer s ar e neithe r sufficientl y Internet savv y nor sufficientl y knowledgeabl e o f the relevant marke t to properly explore the options, even if they had the time. But chea p and effectiv e electroni c intelligent agent s can be subtly instructed a s to one' s real priorities an d trade-of f rates—the y d o no t hav e to b e crude proxie s o r foolishl y absolut e rules—an d sen t of f t o d o one' s bidding. Even given their cost , the intelligent agen t might mak e on line shopping a more attractiv e optio n fo r th e individual consume r and help drive down prices more generally . One migh t assum e tha t we b site s fo r big-ticke t item s would b e more cos t effective tha n thos e for smalle r purchases. Prospective ca r buyers migh t as k a doze n meaningfu l questions , wherea s thos e choosing amon g sof t drin k brands probably would not . As we have

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seen, though, eve n inexpensive , diet-related item s might b e associ ated with a flourishing we b site. There may even be a certain logic , beyond shee r novelty , to havin g a soft drin k web site . The leadin g soft drin k manufacturer s ofte n compete , after all , not s o much o n the basis of price or taste as on perceived coolness. Establishing one' s coolness compare d wit h tha t o f one's competitor s can , however, be something o f a dicey, subjective business. Certain kinds of commer cials may assist in this process, as may accoutrements suc h a s pagers or a well-chosen celebrity endorsement. Celebrities, however, may be vulnerable t o injury o r unfavorabl e publicity . If celebrity status ca n establish coolnes s by association, perhaps a cool web sit e for one' s product can do the same. It may be easier to engineer perceived coolness into one's web site than into one's underlying product . Net commercializer s will , in general , d o bes t b y no t seekin g t o deny basic, ingrained cultura l patterns . Some market s hav e stron g sensory elements beyond tha t o f sight; thus many shoppers appreci ate the chance to squeeze the melon o r kick the tire. Eventually, such sensory elements may be virtually available. In addition , sometime s we look forward t o the social, breeze-shooting aspect s of shopping . Surely this is currently electronically possible, whether with real sales people, avatars, or shills. Commercialization o f the net beyond a certain point will require the continued broadening of net demographics, as well as changes in the ways people navigate through the net. A fairly high percentage of net commerce i s still computer related , a fact tha t i s not muc h healthie r commercially than using printing presses mainly to promote the sale of printing presse s an d relate d materials . This dilemm a i s partly a matter o f demographics. Procter and Gamble , for example , does no t want to be confined t o selling its broad line of household good s only to "netizens."

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There i s currentl y a race betwee n th e diminishin g leve l o f skil l required t o navigate the web and th e expansio n o f the group o f ne t users. Most people ar e not accustome d t o using the Internet, whic h is certainly not alway s a matter o f their bein g unabl e t o affor d th e proper equipmen t o r acces s charges . Some person s ar e allergi c t o booleanism, an d som e shoppin g problem s d o no t reduc e wel l t o boolean logic , perhaps owin g to the lack of a standardized vocabu lary. Search engine s ofte n retur n numerou s irrelevan t sites . Some persons ma y have incompatibl e taste s o r principle d objection s t o shopping o n th e computer . Other s ma y believe tha t the y lac k th e skills needed t o use the net. Recall the surprising percentage o f per sons wh o ow n videocassett e recorder s bu t ar e unabl e t o progra m them. Many commercial enterprises , however, will not want to write off prospective customers who are willing and able to pay but are not technologically adventurous . Many sorts of commercial enterprise s will want to work with an d encourage thos e wh o ca n mak e web surfin g easier , faster, an d les s intimidating. The idea is to continually lower the amount o f knowledge and skil l needed, or widely thought t o be needed, to reach an d respond to commercial web sites, for example. Voice recognition will not hel p i f it is thought t o mean simpl y more thing s to learn. Mos t new arrivals at the Web are not immediately interested in attemptin g to remember variou s techniques, procedures, and possibilitie s al l at the sam e time. None o f this contradict s th e ide a that th e ne t offer s the advantag e o f ver y narrowl y targete d advertisin g t o receptiv e audiences. As net demographic s becom e representativ e o f a larger cross sectio n o f th e population , th e averag e ne t use r wil l b e les s interested in , say, buying a high-tech, net-oriented item . Part of the difficulty o f predicting the eventual degree of commer cialization o f th e ne t i s the possibl e cumulativ e o r "snowballing " effects o f prior commercia l influence s o n the net itself. Further we b

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commercialization, fo r example , can be presented a s the onl y economically viable, or the only culturally attractive, solution to technical problem s cause d largel y b y earlie r we b commercialization . Commercialization thu s gain s groun d b y offering t o fi x problem s largely of it s own making . This, in turn, expand s th e presence an d the practical influence o f commercial enterprises on the web. Consider, for example , some technical problems currentl y associ ated with th e net. Dialing up ma y result i n a busy signal. Particula r sites may be overcrowded an d thus not available . Audio quality does not yet match that of the other media at their best. Graphic displays, in particular , ma y be painfully slow , and disconnection s an d othe r glitches occur a t random . Standard s hav e not ye t been establishe d where they seem to be needed, and confidentialit y an d securit y ar e still shaky. Wireless is in its infancy . More important, commercia l communication s canno t flourish i n an uncertai n environment . Eithe r th e ne t mus t b e technicall y improved, or it will be bypassed and perhaps left to atrophy. It is in the interest o f commercial enterprise s to resolve the technical problems, and it may be cost effective fo r them to devise, or at least pay for, th e necessary solutions . There i s admittedly somethin g o f a collectiv e goods problem here . Fixing a problem ma y be expensive, and it may be difficult fo r th e fixe r t o charg e al l those who us e or benefit fro m the inventions and improvements in infrastructure. Still , it is reasonable to suppose that individua l firms, join t venturers an d consortia , or variou s combination s o f commercial , universit y research , an d federal governmen t cooperativ e effort s coul d mak e th e necessar y improvements. Ironically, the proliferation o f commerce o n th e ne t has aggravated som e of the most familia r technica l problems. Think of the recent increases in the number o f entities taking up residenc e on th e net . Some o f the ne w addresses ar e for educationa l institu tions an d fo r governmenta l entities , but b y far th e fastest-growin g

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sector i s that o f commercia l enterprises . Some of the mos t obviou s net technica l problem s ste m precisel y from thi s commercia l over load, or from th e mismatch between curren t ne t capabilities an d th e increased volume of net traffic . We may expect that the interests driving the net's commercializatio n will, despit e th e collectiv e good s problems , offe r t o resolv e thos e technical problems. It is also likely that thos e solution s will lead t o further commercializatio n o f the net. Although it is premature to try to envisio n ho w al l the problem s wil l b e addressed , conside r on e possible theme and variations. When middle-clas s persons perceive the physical security of thei r way of living to be at risk, they react in different ways . They may simply move, leaving others to cop e with the problem. They may seek a collective, political solution, perhaps through increase d polic e protection fo r all . Or they may arrange fo r private security, thereby creating a two-tiered securit y system of private security for th e well-of f and underfunded polic e for the less affluent . Commercial enterpris e ma y respond t o the net's technical prob lems in similar ways. We might expect, analogous to the private security arrangements, the developmen t o f special, paid, "fast lanes " on the infobahn . O r i n exchang e fo r a premium payment , on e coul d travel "first class, " as opposed t o "coach," on th e Internet. Instead o f more legroom and less punitive snacks, the extra fees would guaran tee quicker an d mor e reliabl e Internet transactions . The less fortu nate would be consigned to second-class net service. What i s interesting , though , i s tha t i t i s probabl y no t i n th e broader interests of commerce as a whole to let the facilities availabl e to the unwashed masse s fall below a certain leve l of efficiency. Tha t is, i t i s not i n th e interes t o f th e Fortun e 50 0 fo r thei r retai l cus tomers t o be disconnecte d to o man y times. Commerce ca n hardl y

The Commercia l Colonizatio n o f th e Interne t • 12 7

dazzle masses o f teenagers with sophisticate d graphic s an d audi o i f most o f them ar e unable to access such displays. The business enter prise may lose a sale, if not a customer, if the customer cannot locat e or reac h th e prope r we b site . If too man y potentia l customer s ar e paying for thei r ne t acces s by the hour , they may not b e willing t o explore a commercial sit e or t o sta y long enoug h t o become inter ested i n buyin g something . Clearly , mos t commercia l enterprise s would benefi t fro m broadenin g th e bas e o f Interne t user s an d s o have a n incentiv e t o subsidiz e th e technica l upgradin g o f th e ne t capabilities an d th e acces s o f potentia l customer s wh o migh t b e unwilling or even unable to pay for such upgrading themselves. Profitable customers need not be affluent customers . It may be possible to narrow the commercial subsidies of custome r net technology, perhaps by offering fre e acces s to some or all distinctively commercial web sites. It may be difficult, however , to provid e access to o r t o improv e th e technica l qualit y o f custome r visit s t o commercial site s without als o improving acces s to o r the qualit y of visits to noncommercial sites . Even if it were technically possible, for example, to allow customers to process color graphics and high-qual ity audio a t some or all commercial sites , but no t a t noncommercia l sites, such discrimination ma y appear mean-spirited, thus destroyin g the public relations value of any consumer subsidy . Surely, commercial enterprises can collectively afford t o offer suc h subsidies if they see it as being in their interest to do so, and they can derive something o f real commercial value in exchang e for th e par tial subsidy. Perhaps the beneficiary will have to complete and regu larly updat e detaile d marketin g surveys , accep t unsolicite d commercial e-mail, or regularly click through a gauntlet of personalized on-line advertising . Eventually, perhaps, every cable or eve n ever y long distance cus tomer wil l have free an d unlimite d acces s to the Internet , a s well as

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all the necessary hardware and software . Even now, the cost of Inter net acces s is dropping. But som e commercia l subsidie s ma y still be necessary, an d man y o f th e mos t interestin g we b site s ma y be th e most expensive to operate and maintain. Often, though, commercia l enterprises wil l want t o hav e someone els e pay the subsidy , even if they have to sacrific e som e o f their control . In suc h cases , the ide a will be to convince the federal government , perhaps i n concer t wit h consumers and education groups, that the taxpayers really should be paying for muc h o f this upgrading process . The argument certainl y need not be that what's good for the General Motors web site is good for the country. Surely it is in the national interest for American citi zens generally to be well positioned to use the emerging technologie s of the information era . Economic competition i s global and require s access to information. Ther e is, as the U.S. Supreme Court observed , a strong public interest in hearing what the voices of commerce wish to tell us. Government subsidie s ca n be sought no t onl y on thes e ground s but als o to make the net more democratic . Net technologies ar e still available mainly to the economically affluent, despit e their diminish ing cost an d th e increasin g numbe r o f terminals i n publi c school s and libraries . To deny access to the Internet i s to den y the develop ment of important skills, as well as access to one kind of general education. Th e commercializatio n o f th e Interne t thu s can , u p t o a point, rest on a broader egalitarian argument . As commerce become s a more pervasiv e part o f the Internet' s an d the World Wid e Web's economic s an d subsidization , it s influenc e will also increase. This is not t o say that we will ever do most o f ou r business o n th e web or that th e largest retailer s will be purely we b operations. Sometimes, however, the most interestin g site s will, for reasons o f cost , b e eithe r commerciall y sponsore d site s o r thos e

The Commercia l Colonizatio n o f th e Interne t • 12 9

heavily supported b y advertising. Flashines s an d technica l innova tion ma y be expensive, which will require commercia l enterpris e t o pay for it . The users' preferences regardin g commercialization o f the net will vary, jus t a s viewer s diffe r i n thei r willingnes s t o pa y fo r mor e choices of cable programming. Whereas some net users may be willing to pay to avoi d al l advertising o n the net, many will not. There fore, the integration o f commercial advertisin g into one' s electroni c trip to the Louvre may not see m much differen t fro m ho w commer cial network television works now. The awarenes s that i n orde r t o avoi d advertising , one i s paying, view by view, or time unit by time unit, for every "premium" site one visits surely takes some o f the enjoyment ou t o f the process. This is not to deny the appeal of pay per view television specials. But pay per view television i s differen t becaus e one' s cost s ar e fixed . On e ca n plan one' s evenin g around , say , a group o r individua l viewin g o f a particular specia l event . But the ne t i s used differently . Often , on e wishes t o explor e spontaneously—t o "sur f th e net" — goin g an d coming a s on e pleases , making serendipitou s discoveries . Pay pe r view, or pay per access , simply does not fi t tha t model . Uninhibite d exploration i s spoiled by a sense that th e meter i s running an d s o is surely more compatibl e with fla t fee s and a n advertising-supporte d environment. Some commercia l enterprise s ma y fea r tha t i f ne t usag e ha s n o budget constraints , some users may wander of f th e advertised com mercial paths and be forever los t for commercial purposes. But most net users do have consumer interests, and advertising may eventually be more widespread an d mor e intelligentl y designe d tha n i t is now. Commercially supporte d site s ma y wel l b e th e mos t technicall y advanced. Not everyone will sit still for web equivalents of televisio n infomercials, bu t mos t peopl e will venture ou t o f the mor e purel y

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noncommercial site s from tim e to time, especially when they need to buy something . What, then, is wrong with this overall picture? Ou r mai n concer n i s that the cyberworld will come to reflect an d reinforc e th e prolifera tion of commercial values. This concern is not based primarily on the commercial control of noncommercial speech, although that is possible. Imagine a n expensiv e technology by which museu m sculpture s can be displayed o n the net in high resolution , from al l angles, or i n three dimensions. It is easy to imagine museums' accepting the loa n of this technology in retur n fo r mor e o r less conspicuous corporat e sponsorship. Should we, then, expect the museums to display skepticism or even a detached, neutral attitude toward commercial values? We could argu e that man y real-world museum s ar e already com promised by commercial values and eve n commercial sponsorships , but thi s should no t mak e us indifferent t o furthe r development s i n this process. We should no t believe that because many museums ar e already less than pristine , it does not matte r wha t furthe r commer cial arrangements the y make. That i s like saying that onc e the air is polluted, it is of little consequence how much more it is polluted. Nonetheless, there are grounds for pessimis m regardin g the com mercialization o f cyberspace . Corporat e interests , throug h th e deployment o f corporat e resources , are likely to shape , quite sub stantially, the cyberenvironment. Bu t there ar e no sign s yet that thi s will lead to a monumental backlash in which we decide that it is better t o spen d ou r evening s chattin g amiably , fac e t o face , with ou r neighbors. In the meantime , let us remember th e stakes . American televisio n advertising is influential bu t doe s not se t the tone for, say, British o r French television advertising . A trend i n American televisio n adver -

The Commercia l Colonizatio n o f th e Interne t • 13 1

tising doe s no t necessaril y sen d domino s topplin g throughou t th e world, but cyberspac e ma y be somewhat different . Man y language s will be spoken i n cyberspace . The most popula r site s in the Unite d States may not be the most popular site s in Saudi Arabia or Japan. It seems unlikely, however, that commercial influence o n the net in th e United State s could be dominant withou t significantl y affectin g ne t sites, net fashions, and net experiences elsewhere. Consider the options available to citizens of less affluent countrie s when the net becomes available to them. For them, the choice between paying a monthly fee for th e privilege of not havin g to endure com mercials an d gettin g fre e acces s larde d wit h commercial s ma y b e between a n affordable ne t or no net at all. They will have to set aside their ambivalence s abou t Western commercia l advertisin g and com mercial values more generally if they wish to be wired in at all. Let u s conclud e wit h mor e general , an d mor e speculative , point s about th e ne t an d commercia l values . Net enthusiast s commonl y tout th e democratic, nonauthoritarian, decentralized , nonhierarchi cal character o f the ne t environment . Stephe n Hawkin g an d Roge r Penrose may debate the nature o f black holes right nex t doo r t o th e ruminations o n the same subject b y a mathematical illiterate . There may, of course, be a certain amount o f hypocrisy in publicly delight ing in this absence of hierarchy. If one is looking for medica l advic e to help a friend, on e may well be tempted t o retreat to the comfort ing authority of the American Medical Association o r the Ivy League medical schools and skip the high school term papers on the subject . We should not , of course, belittle the value of expressive democ racy and equality. Indeed, the thesis of this chapter i s that we should not expec t genuine democrac y or egalitarianism t o become the net' s dominant ethos . I n som e respects , th e opennes s o f th e ne t wil l remain, which i s good. But hierarchy and inequalit y will be presen t

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as well, reflecting i n some measure the influence o f the net's fundin g sources. And tha t influenc e i s likely to be disproportionatel y com mercial. Th e ide a o f histor y itsel f ma y eventually , i n cyberspace , become disjointed o r may come to refer mainl y to the chronologica l order o f the discussion s a t hand. All this may be delightful , bu t i t is hardly subversive of commercial values, though i t may be temptin g to think so if we think only of advertising that refers to history, trust, or authority . Indeed , som e classi c advertisin g i s o f thi s kind : A trusted frien d o f th e family . I n busines s a t thi s locatio n ove r fift y years. Three out of four doctor s recommend. But these sorts of commercial pitche s ar e no t essentia l t o al l contemporar y advertising ; authority-based advertisin g has lost groun d ove r the last half-cen tury o r so . In al l of this, commercial communicatio n cohere s wit h even th e mos t allegedl y anarchi c sector s o f th e Internet . Th e untamed Interne t etho s thus subvert s som e commercial values onl y to th e exten t tha t th e Interne t etho s subvert s it s ow n values : onl y when we doubt tha t al l net speec h is equally valuable can we see the special cultural disvalu e of commercial speech' s preeminence o n th e net. The typical commercia l assumptio n tha t value is relative, subjective, or arbitrar y fit s quit e well, in th e meantime , with th e cur rently celebrated net ethos. Much o f the commercializatio n o f the Interne t wil l rely on per sons who want to visit commercial sites. If we stop responding to the ads, the Internet itsel f may stagnate, along with commercial interest . If access to th e Interne t fo r th e poor o r fo r th e public i n genera l i s commercially subsidized , softwar e blockin g commercia l site s o r advertising is unlikely to be built into the terminals. Ways to block or bypass the blocking software itsel f ma y be developed, as in a n arm s race. Eventually, one may have to fool th e advertiser s int o thinkin g that on e has clicked on an d luxuriated fo r som e time ove r their ad s in order to obtain what one was seeking on the net in the first place .

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In response , ads for th e Internet migh t be designe d tha t d o no t us e brand name s or that us e them i n ways that the hostile software doe s not recognize . Experience wit h televisio n an d eve n wit h th e Interne t ma y b e encouraging i n this regard. After all, television advertiser s have generally not tried t o override the various sort s o f zapping technology . One could argue that som e advertisers have reacted by making thei r commercials mor e entertaining . We already have experienc e wit h site access-blocking softwar e o n the Internet. How much effor t hav e the producers of sexually oriented web sites devoted to devising ways of technically beating the voluntary blocking technology ? These analogies, however, cannot provide much reassurance. Ultimately, net users are unlikely to be able to choos e between a heavily commercial an d commerciall y subsidized Internet , on the one hand , and a more expensive noncommercialized bu t otherwis e quite similar Internet, on the other . The problem is , after all, both partl y technical an d partly conceptual. The technical question is how advertisers can develop new ways to incorporate thei r advertisin g messages as closely and inextricabl y as possible into the material that th e user wishes to access . Internet ads need not be jarring or incongruous. In the future, on e will either cybernetically tour th e Louvre with th e conspicuou s assistanc e o f a seller of bottled water or not tour i t at all. The deeper, conceptual proble m i s the dividin g line between th e zap worthy and the non-zap worthy. The underlying problem i s not really the presence o f commercia l advertisement s bu t th e eventua l pervasiveness o f commercial influence s an d commercia l values. To avoid the commercialization o f the net in this sense may not be realistic; it certainly cannot be achieved through a clever software package . Finally, let us speculate a bit about the ability of net users to adapt , over time, to at least some of the features o f net commercialization .

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People, after all , read newspaper s i n entirel y differen t ways . Some persons d o not eve n see the most prominent ads , or at least remem ber them , whereas other s consciousl y see k them out . Coul d some thing similar develop on the Internet? Those who do not care for th e ads could gradually "train" themselves to ignore them . The problem here is partly one of physical layout and accessibility . If w e like , we ca n fli p throug h ou r newspape r t o fin d th e sport s scores, the obits, or the horoscope, without readin g any of the inter vening ads. Even the ad material wrapping the Sunday comics can be largely ignored. Bu t given the siz e and displa y capabilities o f mos t current video monitors, the control exercise d by operators o f hom e pages, and th e click-throug h technology , it may be difficult , i f no t impossible, to bypass, visually or psychologically, ads in cyberspace. This presents a final risk . We may find ourselve s voluntarily exit ing a n alread y commercialize d museu m sit e based o n th e allurin g representation tha t i f we will but clic k on a particular item , we will be transported t o a more interesting , albeit more heavil y commer cialized, site, perhaps eve n complete with downloadabl e coupon s o r term papers . W e thu s ma y hav e t o decid e whethe r th e bette r metaphors for such a process are nonlinearity and serendipity or distraction an d malnutrition .

What Ar e Controversial Ads For ? I believe in using poetry and humor and all that junk when it turns the trick.

c h a p t e r f o u

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Some ad s ar e controversia l an d shockin g ads , thoug h thi s i s no t intended a s a judgmental o r metaphysicall y ambitiou s claim . Th e focus o f this chapte r i s on th e predictable an d eve n intende d reac tions to ads, justified o r not, of a significant portio n o f the viewin g public. For the most part, we ignore ads that ar e offensive o r shock ing to some segmen t o f the audienc e but tha t th e ads ' sponsors di d not inten d o r predict t o be so. We also ignore ad s for controversia l products, such a s tobacco. Finally we do not simpl y assume that an y ad that i s controversial o r shockin g to anyon e mus t be progressive ; instead, we explore this question with some care. 135

I 36 • Wha t Ar e Controversia l Ad s For ?

The crucia l questio n i s whether mos t controversia l o r shockin g ads hav e a redeeming cultura l value . Even i f th e underlyin g mes sages, intended o r unintended , o f commercia l advertisin g ar e no t culturally beneficial, aren' t mos t controversia l ad s at least culturall y progressive because of , fo r example , their theme s o f diversity, playfulness, novelty , inclusiveness, tolerance, compassion an d sympathy , freedom, individuality , solidarity , disinhibition , engagement , an d equality? Don' t mos t controversia l ad s challenge obsolete , narrow , and repressiv e standards ? Don' t th e transgressivenes s an d icono clasm o f controversia l ad s offe r a liberating message ? Doesn' t th e underlying relativis m that suc h ad s may validate also have progressive implications? We might thin k so , based o n creativel y argued cultura l commen tary and the typical remarks of the ad's producers, if not als o of th e product's manufacturers. A closer look at the dynamics of controver sial advertising , however , lead s t o cautio n an d skepticis m i n thi s regard. At bottom, there are no convincin g reasons to trust th e pro gressivity of commercial advertiser s in general, or of the suppliers of socially controversial advertisin g i n particular , eve n i f we can fin d some interesting and well-known exceptions . Let u s begi n wit h som e examples . Worldwide, probabl y th e best known self-consciousl y controversia l ad s are those for th e Benetto n Group, a clothin g manufacture r tha t ha s fo r year s conducte d a n advertising campaig n terme d th e "United Color s of Benetton." Several o f it s advertisement s an d commercial s contai n visua l image s perceived by some persons o r groups a s shocking, offensive, o r oth erwise socially controversial. Over th e years, for instance , Benetton's advertisin g ha s feature d war cemeteries, a roll of unraveling toilet paper, brightly colored condoms, waterfowl stuc k in an oil slick, a black woman breast-feeding a

What Ar e Controversia l Ad s For ? • 13 7

white baby, child laborers , a human bod y stampe d HI V positive, a blood-covered neonat e stil l attached t o its umbilical cord , two kissing teenagers dressed as a priest and a nun, a black girl with her hai r made u p int o apparen t horns , and a juxtaposition o f 193 6 Olympi c Nazi salute s with 196 8 Olympic Blac k Powe r salutes . Text, or lan guage, is insignificant . We should mention , however , that fo r man y persons , the nam e Benetton summon s u p none of these images but, instead, Benetton' s Formula On e racin g team sponsorships , whose socia l progressivit y one may be excused fo r findin g elusive . After all , tobacco firm s als o sponsor rac e cars. But what abou t controversia l advertisin g images ? What can be said about their social value? First, let us set aside the issue of legal censorship. The images just described, however ambiguou s an d inarticulate , clearly transcen d narrowly commercial speech . Instead, they raise—however vaguel y and equivocally—significan t an d broa d socia l issues . No on e ca n pretend tha t th e Benetto n ad s ar e i n th e sam e categor y a s th e announcement tha t tetracyclin e o r pork an d bean s i s available a t a specified price . At least insofar a s such ad s address recognizabl e socia l ideas an d issues, they deserve constitutional protection beyond that merited b y commercial speech, although not all legal systems would agree. At least one German appellat e court, for example , ruled against several of the aforementioned advertisements. 1 The court's reasoning was that th e ads constituted a form o f unfair competitio n under German law. The German cour t ruled that through it s depiction o f intense suffering, Benetto n wa s attempting t o evok e compassion, to associat e Benetton wit h sympath y an d compassio n fo r suffering , an d thu s t o enhance it s corporate imag e in the consumer' s mind . But the cour t rejected suc h tactic s a s emotionalistic, exploitive, and immoral . I n particular, i t concluded tha t th e imag e o f a n HIV-stampe d perso n

I 38 • Wha t Ar e Controversia l Ad s For ?

strips suc h peopl e o f thei r dignity . All o f thi s amounts , th e cour t held, to unfair competition . The logic of the Germa n cour t i s not entirel y unreasonable. Fo r those steeped in American fre e speec h traditions, however, it shoul d not be persuasive. Unelected court s should no t be in the business of imputing on e particula r interpretatio n t o ambiguou s bu t con sciously intended social messages and then legally condemning the m on grounds of their alleged immorality as so interpreted. Reasonabl e persons ca n disagre e ove r whethe r a n imag e o f a person stampe d HIV positive i s degrading o r instea d challenge s suc h degradation . Surely the intentio n o f the corporation , o r o f the ad' s creative pro ducers, was not to degrade such persons. As a matter o f constitutiona l law , we cannot allo w courts, independently of democratically electe d governments, to impose subjec tive judicial standards o f immorality, or of excessive and permissibl e levels of emotionalism , i n strikin g dow n socia l and politica l mes sages. This must hold even when the speaker's intent is vague, as long as such a n intent i n speaking is present. It does not matte r whethe r Benetton i s a natural or a corporate speake r or a mixture o f the two. Nor doe s it make an y constitutional differenc e whethe r Benetton' s most importan t reaso n fo r formulatin g suc h a n inten t an d fo r s o speaking wa s t o mov e it s products . Finally , i t doe s no t matte r whether Benetton' s failur e t o speak—a t al l or, far les s plausibly, i n just this way—would have , objectively, jeopardized it s profitability . There are , afte r all , few insurgen t politica l movement s tha t a n established orde r woul d b e unwillin g t o conside r immoral . W e should hav e no mor e confidenc e i n the abilit y of courts o r govern ments to regulate an y sort o f commercial o r political speec h o n th e basis of its alleged moral o r political errors than we would when th e allegedly morally defective speec h i s not commercia l an d no t spon sored b y a corporation. On e ca n easil y imagine judicial tribunal s

What Ar e Controversia l Ad s For ? • I 39

pronouncing a s immoral th e speec h o f Socrates , Galileo, Thoreau , Gandhi, and King. Nor should the emotionalism o r imagery of some such speakers disqualify them. Truth in political matters is often spo ken, quite naturally, with great passion. Truth and passion are clearly not antitheses . We shoul d poin t out , however , tha t thi s familia r vie w doe s no t invalidate ou r earlie r conclusio n tha t commercia l speec h ca n an d should b e regulated, generally, on th e basis of reasonableness. Most commercial speec h ha s n o specificall y intende d broade r socia l import. When ads do mix merchandising and social commentary, the courts may well be able to separate the two, and then the free speec h clause should protect the latter more stringently than the former . Our question , therefore, shoul d no t b e on e o f legally restrictin g Benetton's expressio n o f controversial socia l issues. Rather, our con cern should be limited to the progressivity or other distinctiv e polit ical valu e o f controversia l ad s containin g som e mixtur e o f commercial an d noncommercial , express and implied , intended an d unintended elements . The progressiv e contributio n o f Benetton' s ads is, at best, not very clear. We have seen how at least one Germa n appellat e court construe d one of Benetton's ads in ways not intende d b y the ad's producer. But several of the ad s implicating rac e are, individually an d a s a whole, arguably equivocal in their implications . Images of a black girl with her hair arrange d t o resemble horns an d o f a black woman breast feeding a white child, or juxtaposing the Nazi Olympic salute with the Mexico City Olympic Black Power salute are, it seems fair to say, open to less than progressive—even i f unintended—interpretations . An ad , however artisticall y interesting, is not progressiv e insofa r as it invites nonprogressive interpretations , depending o n the polit ical predispositions o f individual viewers . Allowing persons acros s the politica l spectru m t o rea d a n a d a s sympatheti c t o thei r ow n

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particular view is not progressive so much as opportunistic, however desirable this effect ma y be in a competitive market context . Again, we are not accusin g Benetton o f racism. But it is not cyni cal to sugges t tha t Benetto n a s an organizatio n mus t eithe r mak e money by selling clothing o r go out o f business. A tinge of cynicis m might lea d u s to suspect tha t ambiguou s o r equivoca l visual image s that allo w viewers to interpre t the m a s they prefer coul d b e a commercially ideal way of presenting social issues. Viewers with conflict ing beliefs coul d al l count Benetto n a s sympathetic. A further ting e of cynicis m migh t sugges t tha t whateve r Benetton' s rea l socia l beliefs, its first advertisin g goal is not t o unequivocally promote an y consistent se t o f socia l ideas—le t alon e consistentl y progressiv e social ideas—but t o generat e publicity an d sale s through repeate d controversy. But this goal may or may not cal l for progressiv e state ments. Why, then, are Benetton and other manufacturers attracte d t o a strategy of controversy ? Experimental evidence indicates that some Benetton ads in Europe are interpreted i n ways other than thos e purportedly intended by the ads' creators. That is, if the officially intende d message s are the baseline, Benetto n ad s ar e ofte n misinterpreted . W e ma y se t asid e th e problem o f whether ther e is always a clear, accurately reported inten t underlying ever y such ad . The arguable breakdown i n communica tion between Benetton and the buying public, however, may be of little concer n t o Benetto n a s a commercia l enterprise . Happil y fo r Benetton, the messages perceived by the European viewers of selected Benetton ads elicited favorable reactions. That is, viewers reacted positively t o th e ads , despit e interpretin g the m differentl y fro m th e meanings intended by the ads' producer.2 Wha t viewers perceive and like in an ad may or may not be a socially progressive theme. Again, at the ris k o f bein g cynical , we might wonde r ho w eage r a corporat e speaker would be to clarify its message if the currently perceived message drew a favorable response .

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Whether the more controversial Benetton ads actually led to a loss of sales is unclear. Although som e Germa n stor e owner s have com plained of adverse sales effects fro m som e Benetton advertising, even they als o cit e other , unrelate d Benetto n policie s an d th e genera l economy as possible causes as well. More generally, it is surprisingl y difficult t o link sales levels to the magnitude, mix, or controversialit y of a company's advertising. Certainly, Benetton's recognizabilit y an d public profile have become more prominent ove r the past few years. It is likely that the social stands taken by Benetton i n its advertising woul d neve r hav e receive d eithe r th e initia l exposur e o r th e resulting media coverage if they had been taken by an interest grou p with a more direc t stak e in th e subject . Th e imag e o f a n oil-mire d bird, for example , could not hav e been disseminate d a s widely by an environmental group , an d suc h a group' s takin g u p thi s them e would probabl y no t hav e been deeme d newsworthy . The very fac t that the speaker i s the Formula On e sponso r Benetton , and no t on e of th e ver y fe w commercia l enterprise s tha t consistentl y seek s t o downplay its commercial o r profit-makin g status , may also add t o the impact and interest of Benetton's social messages. For now, let us merely note that Benetton is not the only commer cial enterprise that employ s controversial a d campaigns; a pattern i s beginning to emerge with regard to all controversial ads . Controversial advertisements ar e generally defended b y their sponso r i n rathe r politically neutral and , beyond a certain point , not very progressiv e terms. The basic theme i s a positive message about th e spiritedness , sawiness, spunkiness, independence, and self-esteem o r inner wort h of today's young people. The message s o f othe r controversia l ad s migh t b e les s bland, suc h as the general desirabilit y o f envelope pushing, freedom an d open ness, and the relativity and subjectivit y o f matters o f taste and pro priety. I t i s common , afte r all , fo r eve n uncontroversia l ad s t o

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advocate followin g one' s basic impulses and defyin g th e rules. Nike, Burger King, and many automobile ads do this. Less attractively, a number o f controversia l ad s are occasionall y defended o n th e reductivist basi s of age . Hip, young people ge t an d approve o f the ads ; nonhip, out-of-touch ol d people, who lac k th e media savvy , edginess-appreciation, o r the visual image-processin g skills of the young, do not . Bu t probably neithe r hipnes s no r pro gressivism ca n b e closel y correlated , inversely , wit h age . Bab y boomers, especially , ar e notoriousl y unlikel y t o conced e suc h a claim. And i f hipness i s defined broadl y enoug h t o encompas s al l those who understand o r appreciate the controversial ads, there is no reason fo r the m t o do so. According to this view, hipness is remark ably easy to acquir e an d surprisingl y commercialized . T o retain it s cachet, however, it must be , or a t least seem to be, a narrow, some how exclusionary, esoteric quality. To perform it s marketing func tion, o n th e othe r hand , hipnes s mus t b e a muc h les s selectiv e phenomenon, ope n t o th e buyer s o f th e product . Th e hi p thu s includes (many ) young people and nearl y anyone else favorably dis posed towar d th e product. Give n thi s paradox, the shoal s o f com mercial hipness are not easy to navigate. It is difficult t o believe that progressivity is largely either a functio n of youth or of one's reaction to a series of commercial advertisement s for a line of clothing. Commercial stylishnes s is not yet synonymou s with progressivity. There is more to progressive social transformatio n than understanding , approvin g of , o r eve n buyin g th e product s touted by culturally sophisticated or artistic commercials. Advertising can i n principle conve y progressive messages, despite the objectiv e functio n o f commercia l advertisin g t o inspire overal l consumer deman d or to encourage brand loyalty or switching. As we have seen, commercial advertisin g by its very nature sends—a t leas t by implication—basic message s about th e normalcy, effectiveness ,

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and propriety of consumption-oriented way s of living. This message is conveye d eve n i f th e hippes t ad s depreciat e commercialis m o r insist that we not buy their products. In fact , ads that tou t noncon sumption ca n surviv e th e Darwinis m fitnes s struggl e onl y if they , paradoxically, encourag e consumptio n o r i f th e a d producer s ar e willing and able to subsidize them. Anticonsumption ad s that do no t "work" by inspiring consumption throug h som e sort of ironic reversal simply cannot survive . In principle , then , ther e i s roo m fo r ad s tha t carr y progressiv e messages, as the constraint s o f th e marke t d o no t alway s rul e ou t such messages . Th e amoun t o f roo m fo r progressiv e message s depends o n the producer's market-ecological niche , the degree of a d saturation, th e natur e o f th e product , th e intende d audience , th e spirit or mood o f the times, and the desired marke t share . The mar ket in general does not impos e a uniform politica l slant , any deviation fro m whic h i s punished. Bu t this discretionary roo m ma y als o run i n the direction of antiprogressive messages as well. More specifically , wha t ca n b e sai d abou t recen t controversia l advertising? The typical vagueness, largely visual nature, and atmos pheric qualit y of these ad s in som e respects limit an y intended pro gressive messages. Worse, some of the supposedly progressive ads are open t o les s progressive interpretations . I t is possible t o rea d pro gressive socia l messages int o a number o f controversia l ads , but i t also is possible to read some controversial ad s as, for example , legitimizing commodifie d attitude s towar d sex , distractin g attentio n away from mor e useful approache s t o serious issues, or encouragin g passivity. It is hard, therefore, to see them a s progressive. What abou t th e commonl y implie d broade r messag e tha t tast e and propriet y ar e somehow relative , or merel y subjective? Som e o f the controversia l ad s encourag e u s to se t ou r ow n standard s o r t o follow som e group' s standards , withou t worryin g abou t whethe r

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those standards are flawed by any other measure. Doesn't that sort of message have progressive implications ? Historically , haven't repres sive groups alway s denied th e relativity or subjectivity o f all sorts of standards? Isn' t ther e a clea r association , then , betwee n th e rela tivism o f standards an d freedom ? Doesn' t relativis m increas e toler ance and reduce conflict ? These are important question s to which ther e are no quick , satisfying answers . They have been addresse d elsewhere 3 and canno t b e addressed here in detail. Suffice i t to say that althoug h oppositio n t o moral relativis m ha s been a n elemen t o f oppressive ideologies, such opposition has also been part of our most progressive, liberating ways of thinking. Relativism can just as easily take the form o f exploiting or ignoring the weak and deferring to the strong as any other, more progressive form . Wh y no t tolerat e thos e wh o ar e stronge r an d tak e advantage o f or ignore those who cannot resis t effectively? N o grou p characterizes its own morality in just these invidious terms. But why not adop t jus t suc h a group-intereste d moralit y onc e th e fu n o f other forms o f moral posturing begins to fade? If standards are relative o r subjective , wh y no t equat e moralit y wit h th e interest s o f whatever group one cares to associate with? Progressivism occasionall y refers t o the sacrifice o f a group inter est, especially, if not exclusively , on th e par t o f the powerful o r th e affluent. Progressivis m involve s the redistributio n o f resources . If such sacrific e i s to be substantial , long term, and consistent , ther e must be an objectively good moral reason for the sacrifice. The poo r are not better of f whe n they depend o n th e groundless gesture s an d arbitrary posturing of subjectivism . Relativism an d subjectivis m o f standard s ar e thus , i n th e lon g term, not hospitabl e t o real progressive change . But there is , on th e other hand , a central rol e fo r relativis m an d subjectivis m i n con sumption-oriented lifestyles . The market itself imposes no standard s

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of judgment, taste, or morality beyond what seem s necessary to sustain itsel f fo r th e moment . Th e fashio n industry—an d t o som e extent othe r industries , including som e consumer durables—relie s on change s o f fashion tha t appea l more t o arbitrar y an d subjectiv e taste than t o objectiv e improvement . Th e marke t ha s n o inheren t preference between providing basic necessities for the poor or devot ing its attentions to other pursuits. Commercial market s are, in general, nonjudgmental. Ther e ar e no morall y objectionabl e deman d curves. Markets d o no t requir e o r eve n prefer an y redistribution o f wealth or egalitarian socia l change. In the long run, economic exchange is at its most robust when we are not subjectivist s abou t matter s suc h as rudeness, indolence, or com placency in regard to the production an d sal e of goods. On th e con sumption side , the marke t i s open t o an y taste. Consumers ca n b e rude, indolent, o r complacen t a s long a s they remain amenabl e t o buying. There is thus a significant spli t between our ethos as producers and tha t a s consumers, which create s tensions between moder n personal an d economi c values. As consumers, we are encouraged t o break th e rules , t o hav e i t ou r way , t o def y authority , t o ac t o n impulse, t o indulg e ourselves , to obe y ou r thirst , t o focu s o n th e short ter m an d o n ou r ow n gratification . Th e custome r i s alway s right, even when h e or sh e is, in some deepe r sense , wrong. But we are not alway s consumers. Sometimes we are producers, and whe n we are producers, our continuin g to embrace the values encourage d in us as consumers ca n be inefficient, i f not disastrous . This conflic t is more tha n a n irony ; it may over time yet prove to be a source o f real instability . I t i s not eas y to embod y nearl y pur e hedonis m a s consumers an d Dilbertianis m a t work. It seems likely that ove r th e near term, some of this role strain ca n be reduced i n certain respect s by what might be called the "adolescentizing" of the workplace.

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In any event, the lifestyle of consumption doe s not reject the claim that al l choices ar e equal or that value is in the ey e of the beholder . Relativism i n the spher e o f consumptio n legitimize s an d supports , and i s supported by , other form s o f relativism, in which concer n fo r the disenfranchise d i s merely a matter o f taste an d prudence . Th e arbitrariness o f th e choic e betwee n Cok e an d Peps i i s compatibl e with a broad relativism . This broader cultura l relativis m i s linked t o commercialis m i n a number o f ways . Ofte n w e assum e tha t choic e amon g consume r goods is a matter o f arbitrar y variation amon g person s o r groups . One simply likes or does not like a given product, much a s one sim ply does o r doe s no t lik e a given produc t ad . Consumption i s also relative to time. What once may have been fashionable o r shocking is no longer so. On the other hand, some of what is currently shockin g may once have been less so. Finally, consumption i s relative to place. Different countrie s an d differen t region s within th e sam e countr y have somewhat differen t taste s in products, brands, or ads . We are not yet an homogenized globa l village. This sor t o f commerciall y enshrine d relativis m has , as we hav e seen, an antiprogressiv e side . Let us conclude by asking whether w e are satisfied with what commercial relativism can offer us . Think of a more o r less overtly racist commercia l advertisin g theme o r imag e drawn fro m an y point i n American history . Such an image probabl y appealed t o som e peopl e i n it s tim e an d place , becaus e ad s tha t offend mos t of their actual customers cannot survive . But we would also want to condemn such ads as racist. The crucial point i s that w e would—or a t least should , an d fo r ver y practica l reasons—want t o condem n th e ad s a s universally racist , an d no t merely as racist by our own , perhaps anachronistic , standards. The fact tha t a n a d has a broad popula r constituenc y shoul d no t mea n that i t is not racist , even if no on e objects t o it when i t first appears . We do not want to say of some ads merely that they are racist by our

What Ar e Controversia l Ad s For ? • 14 7

standards, if not by the dominan t standard s o f their day . Rather, we want to say that the ads were racist, and wrong, even if no one at the time though t s o an d eve n i f th e cultur e a t th e tim e lacke d th e resources to se e the ad s as wrong—which i n an y event i s unlikely . We need standards higher than sale s growth or contemporary popu larity with a target market . The dominan t cultur e o f th e time s ma y b e invoke d i f someon e seeks to mitigate the moral blame we might otherwise impute to th e racist ad's sponsors. But the degree of moral blame imputed an d th e wrongness o f the ad s are separate issues . We should no t be conten t with th e relativis t respons e tha t th e allegedl y racis t a d migh t b e deemed worthy of condemnation b y us but not by those of an earlie r day, with no overarching cultural standards to appeal to. With regar d to suc h cases , we cannot b e willing to settle for a draw between th e racial judgment s o f tw o allegedl y incommensurabl e cultura l eras . Sometimes an idea is not just earlier or later, but better o r worse, on grounds transcending narrow , particular cultura l standards. At least, this should be the standard set by progressive thought. If not, progressivism has given up on genuine progress, and on much else besides. Most controversia l a d campaign s ar e to o equivoca l t o coun t a s progressive. Youth is not hipper than middle age. Nor is the opposit e true, as those of us who see k youth i n an y of its artificial form s an d guises mus t concede . Spiritednes s an d independenc e d o no t tak e their highest o r most progressive forms i n particular choice s amon g consumer goods , le t alon e i n a particula r designe r label . Inne r worth, a subject o n which Immanuel Kan t had a s much to say as any commercial advertise r does , i s no t associate d wit h a n interes t i n fashion o r i n a particular lin e o f expensiv e clothing . Progressivit y and glamour ar e not inseparable . None of this discussion attempt s to evaluat e the subjective inten t o f any controversial advertisemen t o r o f their creativ e a d producers .

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But we should poin t ou t tha t ther e i s no la w of nature holdin g tha t controversial o r shockin g ad s must eve n pretend t o be progressive . Indeed, the opposite i s possible. We can envisio n intentionall y con troversial o r shockin g ad s that , i n contrast , hav e antiprogressiv e implications. We can eve n imagin e suc h ads , targeted a t carefull y chosen nich e markets , bein g commerciall y successful , despit e o r because o f the advers e journalistic an d broade r publi c response . It also is not plausibl e to say that progressiv e commercia l ad s actuall y shape their viewers' attitudes, beyond simpl y mirroring them , while denying that this could also be true of antiprogressive a d messages. Commercial goods , after all , are generally produced b y person s sympathetic t o th e ide a o f making a profit an d ar e sold t o person s sufficiently affluen t t o pay for them . Small, politically weak minori ties ma y no t hav e muc h relevan t marke t punch . O r th e produce r may—in a n increasingl y diverse , fragmented, heterogeneou s mar ket—be seekin g a profitable niche , a sufficient slive r o f a marke t share, rather than broad marke t dominance . Perhaps it can afford t o alienate some groups precisely in order to attract a stable, enthusiastic, if narrow, following. No t al l social groups us e all products an d brands a t equa l rates , now o r i n th e foreseeabl e future . I f w e ca n afford t o alienat e som e potentia l customers , i t i s better fo r u s t o alienate those unlikely to buy our product unde r any circumstances. A strategy involving the intentiona l alienatio n o f potential cus tomers may seem nontraditional, if not irrational . That is , the traditional assumptio n i s that controversia l ad s do not "work," that on e should not, in effect, turn awa y paying customers. Most marketer s ar e no t intereste d i n alienatin g som e potentia l customers t o attrac t others . Broad-based, multiple-product, house hold-oriented companie s suc h a s Procte r an d Gambl e an d Kraf t Foods fall int o this category. But other sort s of enterprises ma y no t feel thi s way . Som e companie s ma y assum e tha t the y shoul d no t

What Ar e Controversia l Ad s For ? • 14 9

aspire to a dominant marke t shar e o f a very broad audience , in th e way that Cok e an d Peps i do . Perhaps a modest, distinctiv e nich e i s the best survival strategy for som e firms. The problem her e reflects th e dominance o f the commercial culture . Commercial advertisin g is threatening to reach the saturation point . Even thoug h w e mis s mos t ads , we ar e bore d o r annoye d b y ou r repeated exposur e to a few. New media for advertisin g are constantl y cultivated. Ads are both numerou s an d ubiquitous . But as the num ber of ads and ad venues proliferates, the amount o f attention paid to any given ad or campaign tend s to diminish, even assuming that th e ad is noticed a t all. In Britain fro m 198 5 to 1995 , the number o f different television commercials aired daily increased from 20 0 to 4,500. This i s the proble m o f inaudibilit y o r inconspicuousness . Ou r own ad s are in danger o f being overlooked o r drowned ou t becaus e the competitio n fo r th e viewers * attention i s today mor e intense . Our ad s must therefor e stan d out . In theory, we could tr y to attrac t attention by using superior ads . Or we might envisio n a way of producing novel , mor e entertaining , les s demanding , o r attention grabbing but not controversial ads. Continual qualitative excellence, or even continual technical or thematic novelty is not, however, easy to achieve . We could therefor e see k controversy, the roug h equiva lent o f shouting i n orde r t o be heard abov e competing voices. Likewise, i f a studen t desperatel y crave s attention , h e migh t pursu e excellence or let loose a frog i n the back of the classroom. If we capture viewers ' attentio n throug h controversia l ads , other s ma y b e forced, perhap s agains t thei r bette r judgment , t o embrac e simila r strategies. The penalt y fo r lettin g loos e a frog i n th e marketplac e may b e low , an d th e penalt y fo r no t doin g s o ma y b e high . Th e degree of controversiality needed to get attention ma y thus be grad ually ratcheted up , in a n eventuall y self-defeatin g manner . I f to o

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many people are shouting for attention , only those with the loudes t voices will have an advantage . Increasingly, therefore, the task for many advertisers is simply to be noticed and remembered in a sufficiently favorabl e way by some frac tion o f a n audience . Audience-recall rate s for typica l ads , for thos e who believ e i n th e significanc e o f suc h numbers , hav e ove r tim e dropped alarmingl y as the numbers o f ads, venues, and advertisin g media hav e expanded. The task of staving off diminishin g a d recal l must be solved by some legally, financially, and culturall y acceptabl e means, for some market of acceptable size and composition . Perhaps, then, seller s ca n fin d a n increasingl y powerfu l marke t logic in favor of controversial ads, especially those sellers who canno t expect to draw broadly from ou r segmented , diverse, heterogeneous market. The y coul d tr y t o startl e thei r audience , eve n i f i t seem s more difficul t t o startle . But why can't the controversial ad s be con troversial in ways that promote progressiv e thought an d progressiv e movements? We alread y hav e par t o f a n answe r t o that . Mos t commercia l enterprises themselve s and , in man y cases , their mos t value d cus tomers have no consisten t stak e in progressivism. Creative advertis ing executives o r thei r employee s migh t b e more sympathetic , bu t the autonom y tha t client s can o r will grant t o the advertisin g firm s receiving thei r commission s i s limited . A t som e point , economi c results matte r t o th e client . Indeed, som e o f the majo r advertisin g agencies often tal k a better game of progressivism than they practice; the percentage o f women an d minorit y decisio n maker s a t some o f the major a d agencies is often th e same as that a t many commercia l enterprises not especiall y noted for their progressive outlook . In an y event, there i s a more systemi c reason tha t we should no t expect controversia l ad s to be consistently progressive. If they wor k at all, controversial ads work in part based on their distinctiveness o r

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their unfamiliarity . I f most controversia l ad s were also progressiv e ads, they would bear the seeds of their own destruction, obviously an unstable stat e o f affairs . A more stabl e equilibriu m woul d reasser t itself. If too man y controversia l ad s were als o progressive ads , the edge o f novelty , shoc k value , an d cutting-edg e controversialit y would be eroded. Many people would note the link between contro versiality and progressivity. The progressively controversial ad would itself become predictabl e an d familiar . When i t became familia r o r predictable, its rationale woul d b e lost. At that point , there woul d then b e greater controversy , shock value, and ne w customers t o b e wooed wit h unfamiliar , antiprogressive , or a t least nonprogressive , controversial ads . Whatever th e overal l leve l o f controversia l ads , some variable o r stabl e mixture o f progressive, antiprogressive, an d nonprogressive controversia l ad s will always be in play. Remembe r that i n the noncommercial realm , controversial bumper sticker s an d T-shirts d o not invariably bear progressive messages. The threshold level of shock value varies over time and from subjec t to subject. It is difficult i n som e contexts to say much tha t i s widely considered shockin g about, for example , the sitting president o f th e United States . Othe r subject s stil l hav e som e potentia l fo r shoc k value merely by being mentioned publicl y or i n a commercial con text. None of these tendencies, however, seems to advantage progressive commercia l speech . I n fact , a cas e t o th e contrar y coul d b e made. Consider tha t ou r broade r cultur e ha s struggle d fo r decade s t o subdue th e blatant negativ e racia l an d ethni c stereotype s i n com mercial advertising, including product logos . This social task is not, of course, yet complete , and i t is possible that a gradual ratchetin g up o f the level of shoc k value needed t o gai n public attentio n ma y eventually work against the fulfillment o f this task.

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For example , if an d whe n advertiser s conclud e tha t th e leve l o f controversy i n advertisin g ha s rise n s o high tha t controversia l ad s must no w be intensely controversial, the genera l rul e agains t nega tive grou p stereotypin g ma y b e threatened . A n advertise r migh t attract attentio n by , for instance , ambiguously unflatterin g depic tions of undocumented aliens . That might generat e media attentio n and advers e reaction i n som e quarters . But some enterprise s migh t be incline d t o sacrific e thos e potentia l marke t segment s i f th e a d played wel l elsewhere. Presumably, suc h ad s would b e designe d a s purportedly humorous , s o tha t thos e objectin g t o the m coul d b e accused of having no sense of humor . Undocumented alien s would be almost to o easy . Welfare recipi ents o f on e sor t o r anothe r migh t als o b e targeted , wit h n o grea t marketing los s i f th e a d campaig n wer e execute d cleverly . Som e forms o f mental illnes s might als o be targeted. Some groups ar e no t in a position t o boycot t o r otherwis e effectivel y fight back . I f thi s antiprogressivism sound s to o maliciou s t o be plausible, remembe r that th e underlying logic is not t o attac k the weak or disadvantage d as such but t o seiz e the mos t invitin g way to respon d t o a market place imperative to generate controversy and attention . At some level, we may still believe that ad s undermining particula r groups cannot be good business. But let us consider som e persisten t patterns i n advertising . It would b e gratifyin g t o say , for example , that advertiser s had outgrow n blatan t sexis m i n advertisin g o r tha t sexist advertising creates such a backlash that it simply does not pay. That would be gratifying bu t false . If the advertiser is targeting only a particular demographic segment and the ad has a light, comedic touch, blatantly sexist ads can still pay, despite o r because o f whatever controvers y ensues . The advertise r gets the benefit o f the increase d publicit y an d publi c discussio n o f

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its brand name . The ads may be replayed, for free , in news and info tainment program s o r other unusua l venues. As the controversy an d the fre e publicit y peak, the advertise r the n ca n vigorously disclai m any sexist intentions, donate a relative pittance to some related char ity, and pull the ads as a gesture of good faith. Many viewers, after all, were not offende d bu t amused . Aren't tastes in these matters subjec tive, anyway? The environment fo r sexis t ads is still, in som e respects, support ive. Appeals to se x in advertisin g ar e increasingly direct , and i f thi s trend i s less popular wit h women tha n with men , this is, from som e perspectives, merely unfortunate. Sexis t behavior i n television pro gramming itsel f i s common an d i s commonly validated b y the pro gram itself . One survey , fo r example , o f a number o f prime-tim e network program s foun d tha t 4 0 percen t o f th e sexua l behavio r depicted fit commonly used definition s o f sexual harassment. 4 Thi s sort o f depiction i n network programming i n itself tends to validat e the behavior. But consider, as well, that there is a laugh track accom panying som e o f thi s programming . Presumably , on e us e o f th e laugh track is to tell us when laughter is an appropriate reaction. The issue for us , again, is not whether sitcom s an d thei r laugh tracks ar e by themselve s a n irresistibl e o r eve n a powerfu l influenc e o n th e behavior o f the viewers. Our mai n focu s i s instead o n issue s of progressivity in advertising, or the lack thereof. One of the principal obstacles to discouraging sexist advertising is related t o the underlyin g problem s o f relativis m an d subjectivism . One person's restrictio n o n sexis t advertising will inevitably conflic t with another person's loosely bridled hedonism. For many of the targeted audience members, blatantly sexist ads are enjoyable. At som e point i n ou r cultura l history , we coul d no t hav e pleade d ou r ow n personal enjoyment a s a sufficient defens e agains t disturbing others , let alone undermining thei r basic interests. Today, however, the fac t

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that man y persons enjo y suc h ads in the privacy of their ow n hom e is often though t t o be the moral beginning and end of the issue. The ads' offensiveness t o others is a matter of their own sensitivity. If one doesn't car e for sexis t or racist ads , one can simpl y not watch the m or try to organize a boycott. The a d producer s ca n tr y t o rationaliz e th e whol e busines s b y claiming that sexist ads do not validate or reinforce sexist behavior ; they merel y reflec t th e sexis m o f societ y a s a whole. Fe w person s really believe, however, that the number an d content o f such ads will not, over time, have a n effec t o n socia l attitudes, however difficul t such effect s ma y be to trace. We learn attitude s fro m man y sources, and ther e i s little reaso n t o believ e tha t al l o f u s rigorousl y filter, compartmentalize, domesticate, or discoun t al l advertising, or eve n all invidiou s advertising . Wh y shoul d sexis m b e differen t i n thi s respect from , say , televised violence? There is something od d abou t well-compensated a d agencies asserting that the y cannot chang e o r reinforce socia l attitudes ove r time while at the sam e time claimin g that they can increase sales or market share for their client . There is thus n o reaso n t o assume that controversia l o r shockin g ads usually are progressive, as opposed t o being nonprogressive o r even antiprogressive . N o on e shoul d expec t controversia l ad s t o undermine the broader commercia l messages implicitly touting con sumption as a way of life. Controversial ads are not meant to promote progressive politics at any level but ar e meant, instead, to make their corporation mor e visible and to move particular goods and services. Let us conclude with brief example s o f mildly controversial Britis h ads. One, for a beer company , involves two men discussin g the history of a n ol d oa k tree. They then procee d t o cu t dow n th e tree fo r use a s a beer table . This ad , targeted, on e woul d imagine , a t mal e beer drinkers , establishes that a t least when approache d i n a light-

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hearted manner , environmenta l concern s nee d no t b e treated wit h reverence. It is difficult t o see this controversial a d as a blow for pro gressivism. O f course , an y a d ca n b e rea d i n an y way on e wishes . Maybe remarkabl y crud e antienvironmentalis m i s though t t o b e alienating or able to provoke a backlash. But it is difficult t o see such an interpretation a s necessarily progressive. Or conside r a pair o f multipl e award-winnin g Britis h ad s fo r a motorcycle manufacturer. On e features a son buying a motorcycle fo r himself rathe r tha n a n electric wheelchair fo r hi s elderly father. Th e other has a divorced mother receivin g no alimon y check because he r ex-husband ha s instead bought a motorcycle. Both these ads, again, are meant to be humorous, and many viewers find them inoffensive . Indeed, any offensiveness ma y be unintended an d subjective at best, if not a matter o f the peculiar perspective of advanced age. More to th e point, th e a d ma y pla y wel l wit h it s primar y market , presumabl y young males. There is no rule that humor mus t be subtle or refined . The creative advertising personnel who produce suc h ads are, statistically, unlikely to be eithe r elderl y and immobil e o r financially dependent o n a n alimon y check. Even if they are controversial, such ads are at best devoid of progressive content, a fact that maybe of little concern to the advertising personnel. Some ad makers even redefine offensivenes s s o tha t i t i s less a matter o f insensitivit y t o th e relatively powerless and more a matter of cowardly or unimaginativ e adherence t o formul a an d convention . Th e offensiv e become s th e boring. No boredom, no offense . At some point , the otherwis e unprinciple d rejectio n o f formul a and convention itsel f may come to be recognized a s a standard, con ventional, formulaic approac h to advertising. Even then, new formu las will be devised, or discarded formulas will be recycled. We should probably expec t offensivenes s i n advertising , howeve r politicall y pointless or regressive, to persist. In our culture, offensiveness sell s in

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some circumstances , especiall y whe n th e offende d partie s d o no t matter muc h economically . For politically pointless controversial ads by mainstream advertis ers to disappear , we, the public , would hav e to exercis e a degree o f hypocrisy and self-restraint. We would have to pretend that we never enjoy what i s predictably offensiv e t o others . And we would hav e to act, in a manner expressin g self-restraint, o n this hypocritical theme, pretending to be better tha n we are. As a culture, though, we do no t seem comfortabl e wit h eithe r hypocris y fo r a good caus e o r self restraint for the benefit o f those less influential tha n ourselves .

H o w D o Ad s Describe Us ?

One o f Mrs . Babbitt' s virtue s wa s that , except during dinner parties, when she was transformed int o a raging hostess, she took care o f th e hous e an d didn' t bothe r th e males by thinking.

c h a p t e r f i v

e

Commercial advertisin g addresse s differen t group s o f people wit h mixtures o f insul t an d flattery, bu t als o with som e broad recurrin g themes. Many groups—teenagers, women, young adults , even bab y boomers—are encourage d t o thin k o f themselves a s independen t minded an d sometime s eve n a s defian t o f authority , an d thes e themes o f rebellion an d independen t mindednes s ar e interpreted i n different way s for differen t groups . Ultimately, though, rebellio n i s supposed t o take the form o f market-based consumption . Rebellio n is agains t thos e wh o woul d depriv e on e o f consumptio n o r wh o 157

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would presume to dictate one's consumption choices . Rebellion typically aligns the rebel with one product against its similar competitors. Rebellion a s rebellious consumptio n begin s i n childhood . Com mercial speech does not wait for the maturation o f its audience's faculties. At remarkably early ages, children recognize some commercia l logos, including tha t o f Jo e Camel . Early on , man y childre n trus t Fred Flintston e an d Barne y Rubbl e fo r soun d an d disintereste d advice on which breakfast cereal s are best. In addition, children ma y watch an hour of narrowly defined commercial s each day, not count ing television program s tha t ar e based o n commercia l product s o r that amount to full-length commercial s themselves. Children hav e bee n expose d t o televisio n commercial s fo r decades, but th e balance o f power i n socializatio n ha s shifted a bit. The numbe r o f television commercial s see n annuall y by children , according to one estimate, increased from 20,00 0 in the late 1970 s to about doubl e tha t figur e i n 1987. 1 A t th e sam e time , whateve r potential countervailin g influenc e parent s might have had ha s grad ually been reduced . According to the Carnegi e Counci l o n Adolescent Development , the tim e tha t childre n spen d wit h thei r parent s has , over th e pas t thirty years, decreased b y at least one-thir d whil e at the sam e time , the substanc e an d conten t o f th e interactio n hav e remaine d th e same. Thus eve n i f parents disapprov e o f th e implici t message s o f television advertisin g for children , they have many fewer hour s tha n they onc e di d t o counterac t thi s greate r volum e o f more sophisti cated commercia l messages . Parents thu s hav e substantiall y fewe r resources—time an d energ y being the crucia l ones—t o contes t a potential adversary with greater resources. Interestingly, thos e wh o doub t th e wisdo m o f commercialize d lifestyles face a dilemma with regard to children. Even if pacifism i s a moral ideal , it i s not clea r tha t i t i s best t o inculcat e pacifis m i n a

How D o Ad s Describ e Us ? • 15 9

child who will grow up i n a violent, predatory environment. A similar, albeit les s dramatic, choice mus t b e mad e regardin g children' s exposure t o commercia l values . A t a minimum , childre n mus t understand th e power o f commercia l values . Thus, reducing chil dren's exposur e t o commercialis m o r its effects mean s riskin g thei r isolation by their peers, at a real psychological cost . Children d o not watch commercia l televisio n al l the time. Com peting activities, including the increasingly commercialized Internet , may be becoming mor e popula r amon g th e young. Childre n ma y play with othe r children , which ma y either undercu t or , sadly, reinforce commercia l values. Or they may play computer games , which in many cases should be counted a s neutral i n the struggle betwee n more and less commercial values. On the one hand, computer game s are a commercial product, but one that may encourage the players to think in noncommercial, albeit rather antisocial , terms. More realistically, it may reward hand-eye coordinatio n i n a noncommercial i f ultimately harmfu l o r pointles s way . Children ma y claim t o kno w that compute r gam e violence should no t be carried ove r to the rea l world. But do they ever claim an y analogous distancin g fro m com mercial consumption itself , as opposed to particular commercials ? The preceding discussio n assume s some degree of parental hostilit y to thei r children' s absorbin g excessivel y commercial values . Man y parents, including man y business people, object t o their children' s being exposed to excessive, or excessively early, commercialism. Oth ers, however, do no t d o so , at least not consistently . Many parent s themselves have embraced commercia l values and may not be awar e that their childre n ar e doing so as well. Some parents ma y see their children's adoption of commercial values as reflecting realism, maturity, their freedo m o f choice, or their developin g autonom y an d s o respect their choice as a matter of principle.

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Other parent s migh t prefe r tha t thei r childre n b e exposed t o less commercialization but , fo r mor e pragmati c reasons , do no t com monly ac t o n tha t preference . Parent s ma y b e ambivalen t abou t commerce, consumption, an d culture , and societ y ordinarily point s children i n commercialize d directions . A great par t o f th e publi c world i s commerce, an d i n tha t sense , television advertisin g itsel f may be regarded as educational television . If time and energy are increasingly scarce resources against a nearly ubiquitous antagonist , perhaps mor e discretio n i s necessary. Unde r such circumstances, is it desirable or even possible to argue frequentl y about watching commercial television, for example, or to supervise or participate i n alternative , noncommercial activities ? Trying to limi t the influenc e o f commercia l value s o n childre n ma y produce onl y conflict. Surely there are higher priorities, including the child's safety , general education, avoidance o f directly immoral o r illegal acts such as cheating or stealing, and even undisturbed play . Some childre n fin d tha t consumptionis t value s ar e ratifie d a t school. This may be done throug h conversation s wit h thei r friend s and even through designe r labels on jackets, shoes, or sunglasses, the possession o f which occasionall y inspires crime . The ratification o f consumption a t schoo l ma y also be a n officiall y sponsore d twelv e minutes o f award-winnin g televisio n programmin g i n th e class room, includin g tw o minute s o f commercial s and , occasionally , commercially developed lesson plans. It is easy to understan d th e popularity o f such a program i n th e classroom. Given a choice between watching a Pepsi commercial o r working for a n equa l amount o f time o n sine s and cosines , most o f us would op t fo r th e former . No r shoul d w e be startled i f even th e classroom teache r prefer s th e twelve minutes o f respite, whether o r not they must then be followed u p by a classroom discussion . The producers o f these classroo m program s ar e willing to argu e for th e educationa l valu e o f a wider an d wide r rang e o f programs .

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Almost anythin g ca n be sai d to contribut e t o one' s social skills, for example. It is, as usual, the implie d underlyin g messag e that i s disturbing, in this case that commercia l pitche s ar e nearly ubiquitous . We may begin t o wonder whethe r th e commercia l establishmen t i s suggesting that many children cannot be trusted to watch a sufficien t amount o f commercial television o n their own , hence the classroo m supplement. The message need no t be that th e programming mad e financially possible by the commercials is always less important tha n the commercial s but tha t commercia l message s shoul d b e expecte d in, and belon g in , nearly ever y possible venue. Commercialism, i t seems, neither is nor should be limited in this sense. Children's commercia l televisio n convey s a sense of inevitability . After all, even most adult s do not alway s prefer t o watch dramatiza tions o f Antigone. Fo r producer s o f children' s programming , cos t effectiveness ofte n mean s formulai c animation s closel y tied to com mercial products . I n th e extreme , th e cartoo n i s essentiall y a n infomercial. Th e program, in effect , coincide s with the commercial , with the complicatio n tha t th e hybrid program-commercia l itsel f i s interrupted fo r commercials . The curren t Federa l Communication s Commissio n (FCC ) rul e clearly limits commercial s durin g children' s programmin g t o te n and one-hal f minute s pe r hou r o n weekend s an d twelv e an d one half minute s pe r hou r o n weekdays . Interestingly , th e regulatio n defines commercia l matter a s "air time sold for purpose s o f selling a product or service." 2 I n a sense, of course, all airtime on commercia l television is sold for this purpose. A more traditional analysi s would be that programmin g i s the inducemen t t o watch discret e commer cials. The network o r statio n pay s for th e programming bu t no t fo r the commercials. By the way, the FCC rules are not always followed. Equally interestin g i s th e attemp t t o deconstruc t fro m th e othe r direction th e distinctio n betwee n program s an d commercials . Th e

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FCC regulations praise educational and informational programmin g for children . Include d i s "any television programmin g whic h fur thers the positive development o f children 1 6 years of age and unde r in an y respect , includin g th e child' s intellectual/cognitiv e o r social/emotional needs. " This is a broad but , no doubt , reasonabl e definition. One problem i s that a case can be made fo r includin g som e per centage of, if not all, purely commercial advertising within the scope of this definition. The distinction between advertisin g and program ming conduciv e to developin g usefu l lif e skill s is not clear . Can we say that teenager s nee d t o hav e a n informe d opinio n abou t trad e policy with Chin a mor e tha n abou t th e merit s o f competin g cars , credit cards, or long-distance phon e companies ? Conside r th e occa sionally annoying comparativ e ad s run b y AT&T, MCI, and Sprint . One ca n sa y with a straigh t fac e tha t exposur e t o thes e ad s help s young people develo p usefu l an d importan t skill s in spottin g non comparable claims ; appreciating restrictions , disclaimers, and th e proverbial fin e print ; recognizin g hyperbole ; checkin g fo r th e assumed baselin e o f discounts ; calculating actua l cost s and actua l benefits ove r the short and long term, including rebates; and so on. These skills are important, an d viewing commercial s i s arguabl y part o f developin g them . Accordingly , t o som e degree , ad s ma y intend to promote them, even though n o on e ad may intend t o promote overal l skepticism o n th e part o f the viewer. In general , suc h ads can teach useful comparativ e shoppin g skill s in important mar kets, or consume r savvy , even if they are not advocatin g an y recognizable social idea or contributing to a discussion o f social policy. Drawing a useful lin e between educationa l programming an d none ducational commercial programming i s no less problematic. No on e can quantif y th e effect s o f an afternoo n specia l abou t self-esteem ,

How D o Ad s Describ e Us ? • 16 3

although suc h a special could easil y be classe d a s educational. Por traying way s o f livin g tha t ar e noncommercial—tha t emphasiz e honor, loyalty , an d concer n fo r famil y reputation , a s amon g th e more respectable Klingons—may, on the other hand, be categorize d as noneducational. Watching Lieutenant Worf sacrific e worldl y success for th e sak e of honor i s not deeme d educationa l i n a commer cialized, mor e Ferengi-lik e society . O f course , i f ther e wer e a televised readin g o f the portions o f Plato' s Republic discussin g th e rule o f the honorable , o r timocracy, that hypothetical , unwatche d program would count a s educational. The lesson i s that th e governmen t ha s no politicall y feasible an d readily enforceabl e syste m o f regulatin g th e commercia l market' s television programmin g fo r childre n i n suc h a way that conscien tious parents can assume that their own intervention i s unnecessary. In our culture, it is unrealistic to imagine that the main sorts of programming actuall y watched by most childre n afte r a certain ag e d o not, both conspicuousl y and subtly , convey consumptionist themes . A C-chip to block commercialism is , for our society, unimaginable. Now we shall broaden ou r demographi c focus. Teenagers and youn g adults present interestin g commercia l paradoxes ; they resist catego rization and easy summary. But in this, they may resemble their predecessors. Indeed, because there are so many common themes , it is easy to overstat e th e difference s betwee n today' s teenager s an d youn g adults and their predecessors regarding consumption. To see the generations as internally similar but widely divergent from their predecessors quickly outruns the evidence. We could just as easily emphasize differences withi n a cohort and continuities between generations. Given th e fu n o f labelin g an d stereotyping , i t i s widely believe d that teenagers and young adults nowadays are sophisticated but skeptical about advertising, without having abandoned consumptio n a s a

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lifestyle. The y ar e sai d t o b e muc h alik e acros s th e globe , largel y because o f American television . Young people d o no t enjo y bein g told who o r what they are, what to buy, or how to live. Perhaps the y are mor e sensitiv e abou t suc h matter s tha n previou s generation s were, although on e might remember the 1960 s in similar ways. The iron y is that eve n though youn g person s stres s that the y d o not want to be told how to live, in some respects they perceive fewe r available and attractiv e option s o r dee p reasons for pursuin g them . Disturbing question s remai n unresolved . Even if one coul d avoi d a consumptionist lifestyle , why should on e bother t o resist ? Isn't dis trust an d suspicio n o f commercial o r political authorit y pointless if there are no good reasons not to go with the flow? Resistance is likely to be eithe r futil e o r arbitrary . The lifestyle rebellion s o f the 1960 s had mixed success and unexpected costs . In any event, lifestyle rebel lions agains t commercializatio n ma y b e les s appealin g unde r th e current circumstances , in which job security, financial comfort , an d physical health and safety cannot be taken for granted . For whateve r reason , teenager s an d youn g adult s toda y d o no t seem incline d t o embrac e alternative s t o consumptionis t lifestyles . This does not sugges t that the y have no interes t i n particular socia l causes and issues . It is merely that whatever socia l activism the y d o display does not generall y take anticonsumptionist forms . No doub t there ar e element s o f anticonsumptionis m in , fo r example , som e forms o f environmenta l activism . Bu t mos t youn g person s see m more incline d t o recycl e tha n t o refus e t o bu y a consume r good , recyclable or not, in the first place. About thei r elders , the bab y boom generation , no t muc h nee d b e said. For advertisers, of course, ignoring the baby boom generatio n has rarel y been conduciv e t o financial health . Because o f it s shee r size and attitude s towar d consumption , th e baby boom generatio n

How D o Ad s Describ e Us ? • 16 5

has always had, and will likely retain, the power to redefine standar d marketing techniques . Eve n denyin g the m a graduall y redefine d sense o f perpetua l hipnes s ma y b e risky . Marketer s ma y hav e t o devise a delicate an d subtle , continuously adjuste d mi x o f realism , accommodation, flattery, nostalgia, humor, and creativity . One wa y o f lookin g a t th e number s i s that fo r th e nex t sixtee n years, ten thousand people every day will celebrate their fiftieth birthday. By 2005, baby boomer s wil l for m th e majorit y o f American s between th e ages of fifty and seventy-four . B y that time, the roughl y 70 million t o 7 5 million baby boomers will probably control three quarters of the nation's wealth. This is not a group to be trifled with . Nor i s it clear that agin g boomers ca n be dismissed by advertiser s as set in thei r ways, unconvertible, o r no t wort h botherin g wit h a s long-term investments . I n a numbe r o f markets , a fifty-year-ol d boomer ma y have several decades o f consumptio n decision s yet t o make. Boomers may well be more open to change in their consump tion patterns—bot h switchin g brands an d buying ne w products — than their predecessors were. For som e marketers , the mai n proble m ma y be t o attrac t agin g boomers whil e not alienatin g younger cohorts—imagin e tryin g i n earlier decade s t o persuad e boomer s t o join i n thei r ow n parents ' consumption choices . For others, the chie f marketin g difficult y wil l be recognizing boomers' changing priorities an d appealin g to the m without appearin g to mock or patronize . One commercia l feature s a reprise of Janis Joplin's originally satiri c wish for a Mercedes Benz, but this time played relatively straight. The irony here is, for som e boomers, a bit awkward . There i s a risk tha t some will be confronted to o abruptl y with thei r former , sometime s more idealistic, less materialist selves . Surely the desired respons e t o this Mercedes ad is not that one once was young and disdained statu s

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seeking but ha s now been groun d down , has lost one' s fervor , o r i s even simpl y mor e pragmati c abou t suc h things . Instead , th e ide a must surel y be on e o f associatin g youth, playfulness, an d a certai n form o f hipness with Mercedes. Somewhat les s risky are a series of quirkil y photographed com mercials for "relaxe d fit " or "loose fitting" jeans , clearly targeted a t boomers whose devotion to diet and exercise has been only intermittent. The jump cuts , disjointedness, and odd camera angles suggest a sense of hipness, playfulness, an d unconventionality . Jus t as impor tant i s the underlyin g them e o f comfort . Th e physica l comfor t o f one's attire is a selling point not lost on the older boomer cohort . In the abstract , it is unclear whethe r reference s t o th e 1960 s an d 1970s i n advertisin g hel p o r hur t i n appealin g t o boomers . Som e might remembe r thos e decade s a s times o f conflict , struggle , war, assassination, scandal, or disillusionment. But others think o f thos e decades as a more innocent , in som e ways less threatening, era. Ads that conve y a 1960 s o r 1970 s mentalit y ma y be nostalgi c t o som e boomers an d portra y a certain enviabl e simplicit y o r innocenc e t o some members of younger cohorts . Mainly, though, thes e ar e issues of marketin g strategy . We nee d not doub t th e bab y boomers ' commitmen t t o consumptionis t lifestyles. It is not plausible to imagine that a s boomers turn fifty o r sixty, they will repudiate way s of living that the y have chosen ove r the past twenty or thirty years and resurrect in some form a nonconsumptionist lifestyl e tha t onl y a few consistently embrace d i n thei r youth, and many not a t all. Certainly, the consumption pattern s of boomers in their fifties and sixties will not exactly parallel those of their parents. Some will sail off into cyberspace , if not t o Tahiti. Others may become more activ e in their communitie s o r spen d mor e time o n socia l causes. Some will want to retire earlier, or later, than their parents did. Some may want

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to return to classrooms or at least to a college town atmosphere. Inadequate retirement funding will play important role s over time. We should be realistic, though, about boomers' consumption afte r they retire . In man y cases , boomers hav e save d relativel y little fo r retirement, especiall y in light o f their anxietie s ove r socia l securit y and th e future cos t of medical care . They have done s o not becaus e they have, in general, turned thei r backs on availabl e larger income s or have donated highe r percentages o f their income s to charit y tha n earlier generations did . If many boomers have not yet saved enoug h for thei r retirement , this reflects wha t the y take to be large curren t expenses, mainly for individual or family consumption . The generation that popularized bottled spring water and aspire d to ow n a BM W i s no t a likel y candidat e fo r mas s conversio n t o some for m o f asceticism . Again, far fro m al l boomers wer e a t an y time seriou s abou t countercultura l values . An d eve n thos e wh o emphasized th e importanc e o f no t judging person s base d o n thei r appearance ma y at the time hav e assumed th e superiorit y o f yout h over age . Whateve r conscientiou s objectio n agains t cosmeti c surgery boomers may summon ma y be no greate r than that of thei r predecessors o r successors . In sum , i t i s impossibl e t o predic t precisel y th e boomers ' con sumption behavior over the next two decades. It is difficult, however , to se e the majo r them e a s a significant, voluntar y de-emphasi s o n consumption, whateve r thei r retiremen t prospects . At thi s point , consumption i s part of the boomers' identity. Let us again shift ou r focus , this time t o a brief loo k a t the issu e of gender in advertising, in particular, at women as targeted consumers. If w e wonde r wha t commercia l advertisin g say s t o women , th e answer i s clear: advertising wil l say to women whateve r i t takes t o encourage their commercial consumption. The history of twentieth -

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century American advertisement s eithe r depictin g o r pitche d pri marily at women i s complex and subtle . Almost an y claim about th e techniques of depicting or targeting women ca n be supported . Advertising trends regarding women are not uniform. No particular form o f sexism in ads , for example , is confined t o a narrow tim e frame. A few ads from wel l over half a century ag o portray wome n consumers a s knowledgeable , independen t minded , an d publicl y assertive, if in som e cases only about her consumptio n choices . Not all the mos t recen t ad s g o even thi s far . A few relativel y old ads — long antedatin g th e pseudoprogressive ad s for Virginia Slim s ciga rettes—manage t o mention , an d the n triviall y link , women' s political movements to the consumption o f this or that product. Car commercials satiriz e sales pitches to women tha t focus o n the vanity mirror, but other car commercials continue to trivialize women's real concerns. Some recent ads, including one for Nike on the chance for wome n to play sports, are arresting and, in some respects, relatively progressive. But on the other hand , a recent ad for a major produce r o f dia monds asserts , i n distinctiv e orang e prin t agains t a generall y black-and-white background , tha t "t o know diamond s i s to kno w her." This is a striking claim . Let us grant tha t bot h diamond s an d humans ar e carbo n base d o r tha t i n ou r society , diamond s ar e i n some sens e a social construct. Still , it would b e hard t o beat the lit eral reductivism o f equatin g diamond s an d women , at any time i n the history of American advertising . This is not to suggest that even the Nike "If You Let Me Play Sports" commercial is unambiguously progressive. Some of the touted bene fits o f sports d o not see m to requir e that th e sport s be funde d b y a school or even organized. So there is, in part, a sense in the commer cial of waiting for permission to engage in cardiovascular exercise and competition a s a group, even though thi s should no t requir e officia l

How D o Ad s Describ e Us ? • 16 9

sanction. Nike , it i s true, doe s no t sugges t tha t expensiv e persona l apparel i s necessary fo r an y o f th e cite d benefit s o f sports . In fact , viewers may infer that given the minimal differences amon g footwea r brands, they can reasonably choose their shoes on the basis of the ads' progressivity. But also note that for years, promotions fo r the NCAA have extolled the virtues of athletics, at least for men . And remembe r what selectively progressive commercials tend to obscure, that there is more than one dimension of progressivity on which to judge corpora tions, not all of which are likely to be mentioned in the ads. Hiring and employment practices are one example. Our focus , then, cannot b e on establishin g distinctiv e trend s i n th e depiction o f or marketin g strategie s fo r wome n ove r time. Instead , let us reflect a bit longer o n som e o f the ways in which commercia l advertising undercuts th e interests o f women, commonly by direct ing their persona l an d socia l concern s towar d unproductiv e com mercial channels. How, for example, does the commercial culture encourage women's independence an d creativity? At a general level, some recent commer cials encourage independent-mindedness o n the part of women, albeit reduced t o something like mere spiritedness, spunkiness, feistiness , sassiness, or some similarly adolescent state of being. These qualities, whatever thei r value , are to be displaye d throug h commercia l con sumption, that is , the consumption o f particular commercia l prod ucts. At its lowest point, women's self-assertiveness take s the form o f consuming a certain brand of women-friendly cigarettes . Alternatively, creativity is expressed throug h women' s choice s o f clothing style s o r o f wha t t o bu y an d wea r o n a give n occasion . Choices of makeup, too, express one's creativity, indeed, one's indi viduality. Consumption thu s becomes self-expression . Th e parado x of expressin g one' s independenc e an d individualit y by following a

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well-budgeted a d campaign' s suggestions , along with thousand s o r millions of other women, is not deepl y explored. One is left t o won der how the creativity of Michelangelo or Leonardo might have been expressed if similar vehicles for the expression o f creativity had bee n available in Renaissance Florence . The heart o f the problem i s not that women's choice s among, say, clothing items are limited. Often, the commercial market is criticized for promotin g uniformit y o r conformit y t o on e o r a few standar d models. On e siz e fit s all , though, i s hardl y th e essenc e o f today' s commercial market. Markets can offer a varied arra y of choices. The age of mass production fo r a mass market has faded. The technology is now available for men and women to participate in designing their own fashions via the Internet . At thi s level , th e proble m i s thu s no t o f produc t uniformity . Rather, it is that al l the proposed option s ar e commercial responses . The virtues—an d th e deficiencies—o f th e variou s option s ar e largely shared. Beyond a certain point , addin g mor e shade s o f nai l polish or lip gloss as vehicles for expressin g creativity and individua l personality has only limited value. Encouraging creativit y and indi vidual expressio n i n less commercialized ways , on th e othe r hand , might have greater value. Some recen t commercials , nevertheless, sho w women assertin g themselves i n noncommercia l ways , sometimes a t th e expens e o f some boorish, or merely hapless, male. These sort s o f commercial s exemplify wha t migh t be calle d Rorschac h feminism . Severa l com mercials featur e a spiritedly assertiv e respons e b y a woman t o off camera mal e behavior. The male provocation i s sufficiently haz y so that a wide range of viewers can feel validated by, or a t least neutra l toward, the commercial. These Rorschach feminis t commercial s als o accept, if not encourage, nonfeminist interpretations . If one i s so inclined, one ca n se e the mal e a s either a victim o r a scapegoat. Or on e can read the commercial entirel y differently, per -

How D o Ad s Describ e Us ? • 17 1

haps reading in, as provocation, whatever on e happens t o have per sonally experience d o r conceive s o f a s sufficien t t o justif y th e woman's response . Either th e ma n i n th e commercia l i s at faul t i n some way supplied b y the viewer, or th e woman i s merely reactin g to th e conflictin g an d burdensom e obligation s tha t wome n com monly must bear. The ideal such commercial would be read as fem inist b y al l an d onl y feminist s an d b y nonfeminist s a s validatin g their ow n stereotype s an d worldviews . Surel y th e mos t effectiv e commercials ar e thos e tha t i n som e sens e ar e produce d b y eac h prospective customer . Whether this sort of ambiguous commercial presentation advance s women's interests is doubtful. I t is not clea r that nonfeminist viewer s are even aware of the feminist readings . But the ambiguities, the openness, and the undeniable spiritedness of the female protagonist allo w the ad' s producer s t o asser t th e contrar y i f an d whe n the y ar e s o inclined. Feminist viewers may feel reinforced—at leas t until they see the ad's duplicity. The perfect a d would allo w every sort of viewer t o feel vindication, leading to identification wit h the ad's producer an d purchase o f th e product . Thi s commerciall y idea l outcom e seem s unlikely, though. For a time, feminists ma y be willing to identify wit h ads the y com e t o recogniz e a s onl y equivocall y feminist . Fo r th e moment, anythin g is better tha n nothing . But this sort o f equivoca l commercial feminism ma y quickly fade. The overall message of most contemporar y advertiser s for women i s not likel y to b e on e o f reasonabl y consisten t feminism . I n crucia l respects, the overal l effec t o f contemporar y advertisin g i s to plac e many women unde r contradictor y strains . It is important t o appre ciate the currentl y incompatible demand s t o which women i n par ticular are subjected. If women ar e no longer badgered s o intensively about rings around shir t collars, they are now subjected t o new sorts of double binds.

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Consider, for example , the occasional use in commercial advertis ing o f wome n model s wh o appea r t o man y viewer s t o b e under weight. N o doub t on e ca n conceiv e o f som e sor t o f progressiv e account o f this, but som e viewers have argued that such ads increase the societa l pressures o n women t o be healthfully o r unhealthfuU y thin. N o on e suppose s tha t an y particula r a d campaign , o r eve n advertising in general , dictates ideal body weights for women. But i t is difficult t o argu e that advertisin g has no effec t o n publi c an d pri vate behavior, especially in matters loosely related to fashion . In a n ideal world, women o f all ages would be largely indifferen t to body image, beyond reasonable health concerns. For the moment , however, we live in a world i n which young women, especially , ar e not invariabl y assigned their status on grounds independent o f thei r physical appearance. An important point is that it does not necessar ily help women t o be presented wit h alternative , nonemaciated, bu t practically unattainabl e model s o f attractiveness . Nor doe s i t hel p them t o recogniz e tha t muc h o f contemporary American commer cial culture does not itself care whether women ar e thin. Although generally , th e commercia l cultur e doe s no t idealiz e being overweight , a moment's reflectio n an d a calorie counte r ca n establish tha t important , well-funde d element s o f the commercia l culture d o want women , along with childre n an d men , to be over weight. The y wan t thi s a t leas t i n effec t i f no t b y subjective , con scious intent . I n som e sense , we are a diet- an d exercise-consciou s society. We tend t o tal k muc h bette r abou t i t tha n w e practic e it , however. In thi s regard , many o f th e leadin g an d mos t publicize d items at various majo r fast-foo d chai n restaurant s ar e of little help, and th e leadin g fast-foo d chain s ar e typicall y amon g ou r leadin g commercial television presences . The fas t foo d restaurant s ma y be abl e to clai m tha t the y d o no t affect publi c taste s bu t onl y reflec t taste s tha t wer e establishe d

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independently. As usual, there i s some trut h i n suc h claims , which vary dependin g o n th e industry . Fo r decades , our fast-foo d taste s have been heavil y reinforced b y commercial advertising . It may be too muc h t o claim that slightl y healthier versions o f a range of fast food item s could not be sustained . Admittedly, the relatively low fat McLean Deluxe sandwich did no t draw a n immens e following . Thi s may , however, reflect th e incon gruity of having to make a separate choice for relative healthiness in a commercial environment tha t does not celebrate rigorous nutritiona l standards. More likely, its failure may have been the result of previous advertising. Similarly , some McDonald s sala d item s have not bee n popular, and other chain s have experimented with lighter items, with only mixed success . Several chains have gone in the other direction , by emphasizing the presence o f bacon. Ultimately, whether th e fast food chain s themselves can do much abou t thi s less-than-ideal stat e of nutritional affairs i s not important t o our purposes. A bit of arith metic suggests that the more seriously one takes the fast-food chains ' advertisements, the less likely one is to avoid getting fat . Fast-food advertisin g i s not irresistible ; i t doe s no t completel y bypass rationa l reflectio n an d deliberation . Bu t suc h advertisin g is , at least , a persistent them e hear d b y men , women , an d children . Repetition, i n respectabl e contexts , tend s t o normaliz e wha t i s repeated. Again, the fast-foo d chain s d o no t consciousl y wish any one t o b e overweight , bu t th e arithmeti c i s simple fo r thos e wh o overindulge. Both the messages that promot e obesit y and thos e that promot e extreme thinness have persisted. They both exer t an influence, ofte n on th e sam e persons . Th e mai n point , especiall y fo r som e youn g women, is that such incompatible messages do not necessarily cancel themselves out o r counterac t eac h other. If they did, they might cre ate a measure o f freedom . On e coul d the n us e the undu e thinnes s

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ads against the high fat ads, and vice versa, creating an overall condition of neutrality . Unfortunately, th e result of the conflicting message s about weigh t is not on e of mutual negatio n an d liberation . The commercia l cul ture doe s no t say , in effect , "B e eithe r thi n o r fat , o r i n between , entirely at your informe d discretion. " Instead , young women's arm s are pulle d simultaneousl y i n opposit e directions , an d t o b e thu s pulled i s no t t o b e fre e o f cultura l constraint . O f course , man y women a t eve n th e mos t vulnerabl e age s hav e th e resources , th e alternatives, and the social support to steer a course between incom patible harms without an y sense of inadequacy o r deprivation . Bu t there i s little progressive value i n subjectin g youn g women t o thi s otherwise pointless commercial tug-of-war . This i s not t o argu e that all , or eve n th e strongest , influence s o n women's belief s abou t ho w the y shoul d loo k ar e commercial . Women hav e been pushed, prodded, distorted, and injure d i n man y cultures by noncommercial institutions . Our poin t i s simply that i n our cultur e an d i n various media , commercial message s constitut e part o f the problem. It seems unlikely that women wil l attain eve n the modes t dispensatio n fro m preoccupatio n wit h appearanc e enjoyed b y me n a s lon g a s th e commercia l badgerin g o f wome n based o n appearanc e continues . Even noncommercial pressure s o n women t o mee t particula r standard s o f appearanc e may , in som e cases, be influenced b y commercial forces . To summarize thi s brief loo k a t advertisin g an d th e interest s o f women, le t u s sa y tha t commercia l speec h seem s t o b e generall y unprincipled o r agnostic regarding the interests of women, but ther e remains a n obviou s botto m line : Women wh o ar e no t pulle d i n opposing direction s ma y take on e o f a number o f differen t paths , perhaps a t som e cost , but eac h o f those paths shoul d lea d t o com mercial consumption . Women shoul d thin k carefull y abou t whic h

How D o Ad s Describ e Us ? • 17 5

products an d service s promot e thei r interests , o r bes t hel p the m express themselves , an d tailo r thei r buyin g accordingly . Women' s interests beyond commercia l expressio n ar e largely off th e screen , except insofar a s the very idea of noncommercialism ca n be used as a commercial selling point. The relationshi p betwee n mainstrea m advertisin g an d America n racial and ethni c minorities has been equall y complex. This is again a large story, about which we can say little here. At its worst, American marketin g an d commercia l speec h histor y is replete with wha t are now widely recognized a s racist message s an d images . In grea t part, the y reflec t th e norm s o f th e broader society , but w e shoul d remember tha t th e recor d o f advertisin g agencie s themselve s ha s not alway s been exemplary . Even today, the percentages o f Africa n Americans an d Latino s workin g i n advertisin g ar e abou t 5 and 7 percent, respectively . Ethnically stereotypical logos, trademarks, and othe r visual com mercial images have largely been abandone d ove r time, with som e traditional icons having taken o n a slightly broader ethni c character . For example , the Genera l Mill s construct know n a s Betty Crocke r has frequently bee n update d t o reflect fashio n an d ag e demographi c concerns, and recentl y she has been democratize d a s well, her fea tures modified t o suggest American ethni c heterogeneity. It has been suggested tha t differen t consumer s ca n no w se e Bett y simultane ously as Caucasian, Asian, Latina, or Native American. General Mills representatives hold out for eve n more inclusiveness. The point i s not t o encourag e Latino s to se e Betty as Asian o r t o encourage Caucasians to see Betty as Latina. Those sorts of reading s would b e commerciall y pointles s a t best . Instead , th e ide a i s t o encourage what migh t b e calle d noncompetin g divers e identifica tions with Betty . Ideally, we each shoul d identif y wit h Bett y on th e

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basis of our ow n ethni c group . Betty is one o f us, and w e therefor e feel comfortabl e wit h he r an d accordingl y wil l wan t t o bu y Bett y Crocker products . General Mill s apparently notice s o r care s abou t our grou p i n particular, s o all other thing s being equal , it presum ably deserves our gratitude . This Rorschachian proces s still has pragmatic or cultural limits. If one wants to sell a specific ethni c cuisine to a heterogeneous society , one might just a s well depict a n ethnicall y identifiable chef , for th e sake o f recognizabilit y i f no t o f authenticity . I n general , though , advertisers have learned that it is in the overall interests of commerc e if their ad s invite the previously uninvited , alon g with thei r credi t cards, into the big tent. As long as the onl y issue is who i s to be depicted i n th e advertis ing, most commercial speakers can live with any set of cultural rules. This is not t o deny the importance o f such issues; they are a part o f some o f this century' s mos t significan t debates . But a s long a s ou r attention i s devoted exclusively to which faces are welcomed into th e ads, we are not yet asking whether it is in anyone's interest to be buying the implied commercia l logic. One should objec t o n principle t o being invidiously an d arbitraril y exclude d from , say , a social club . But it does not follo w tha t on e would b e better of f a s a member o f that club . Being excluded from th e face o f mainstream advertisin g is objectionable, but i t does not mea n tha t on e shoul d no t onl y resist exclusion but also lead a commercialized life . Overall, commercial advertising' s attitude s toward ethni c minori ties is probably only slightly less complicated tha n thos e of the society a s a whole. Advertisers kno w no w tha t th e stereotypica l Frit o Bandito or the historical servile kitchen worker are unacceptable, but they ma y stil l no t tak e th e troubl e t o lear n al l the y shoul d abou t minority customers . One large phone company , for example , ran a Spanish-language versio n o f a n a d encouragin g customer s t o cal l

How D o Ad s Describ e Us ? • 17 7

their presumabl y telephonically neglecte d mothers . Apparently, th e ad's creators were familiar wit h the tendency not to bother t o stay in contact with one' s mother an d sense d th e possibility o f playing o n the resulting sense of guilt. The problem, however, is that resistin g cultural stereotypin g doe s not mean that a group's experiences can always be universalized. Not all ethnic communitie s equall y emphasiz e remotenes s fro m one' s mother. As it turned out , Latinos ' response t o the a d was less tha n uniformly appreciative . Th e implicatio n tha t on e neede d t o b e reminded t o cal l one's own mothe r wa s perceived by some a s inappropriate or even insulting. Nor do all advertisers obsess over the cultural healthiness o f their use o f minorit y image s i n thei r advertising . Ther e obviousl y ar e more African America n doctors , lawyers, police, and accountant s than athleti c star s o r musi c celebrities , but mainstrea m advertiser s have continued t o insist on what might be called standard formula s of atypicality . Th e reade r ma y wis h t o compar e th e numbe r an d media prominenc e o f Africa n American s i n curren t ad s whos e function i s to convey authority with those who are there to trade o n their reputatio n fo r phenomena l athleti c skill s or just t o bestow a n aura o f hipness. There are, one supposes, worse messages about African American s that advertisers could send than that of athletic prowess or generalized hipness. Worse messages have been sen t in the past. But a moment' s reflection suggest s that messages at this level may be socially counterproductive, however effective suc h ads may be in creating broad con sumer demand . Unfortunately , ther e i s n o reaso n t o expec t commercial advertising to depart from allegedl y winning formulas fo r the sake of contributing, over the long term, to societal health. This i s not t o sugges t tha t ther e i s some imperativ e tha t drive s advertisers t o stereotyp e Africa n Americans , othe r minorities , o r

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women, eithe r i n thei r advertisin g itsel f o r a s consumers . Suc h strategies ma y occasionally pay off, jus t a s ideologically progressiv e advertising may . But it is neither th e stereotypin g no r th e progres sivism that must driv e successful advertisers . Both strategies may be deemed appropriat e i f they pay off, an d the y pay off whe n viewer s are converted to consumers . To put th e matte r i n vaguely Kantian terms , by its nature, com mercial advertisin g doe s not trea t th e member s o f it s audience a s ends i n themselve s o r a s repositorie s o f absolute , unconditione d worth. T o do so , an a d would hav e to hol d ope n th e possibilit y o f countermanding it s own selling message, if necessary, for the sake of the audience. Simply relying on the consumer t o recognize and pro mote her ow n interest s does not mea n tha t the seller has met Kant' s standards. This is not a matter o f treating adul t customer s a s children. Instead, commercial advertising treats its audience as a consensually available means to corporate ends . Generally, advertising doe s not emphasize that one should buy only if it is in one's interest to d o so. Warning label s an d dru g counterindicatio n message s g o som e distance i n this direction , but no t fa r enough . Undoubtedly, man y sellers think o f their product s a s more wort h buyin g than thos e o f their competitors . But commercial advertisin g doe s not depen d o n such corporate beliefs. Commercial advertising also does not depend o n the seller's belief that th e buyer would b e better of f buyin g th e product rathe r tha n keeping the money needed for the purchase. Here we are continuin g to assum e fre e an d voluntary , nondeceptiv e transactions . We ma y assume that ove r time, shoddy or disappointin g good s do no t pay . Would commercia l advertisin g ceas e i f seller s kne w tha t buyer s would come to regret their voluntary purchase or would be better of f buying something els e instead? One would imagin e not. Advertisers may, but nee d not , care about th e rea l interests o f their customer s

How D o Ad s Describ e Us ? • 17 9

beyond the substitute fo r car e dictated by the market. To a commer cial advertiser, a potential buyer nee d no t be thought o f as anythin g but a complex, voluntarily motivated, or self-programmed machine , with som e built-in capacit y for retaliatio n whe n disappointed . Thi s is the bottom-line logic of commercial speech .

The C u r r e n t Status o f Commercial Culture an d Some Politica l Responses Do yo u kno w th e fello w who' s reall y the American genius? Why, the fellow that writes the Prince Albert Tobacco ads!

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Some time ago , the Swedis h Spac e Corporation considere d placin g giant illuminate d commercia l billboard s i n space , but i t noted tha t "astronomers ar e agains t th e ide a because the y would mi x up bill boards with stars." This problem i s not confine d t o astronomers, and let us hope tha t we all continue t o see some distinction betwee n th e celestial and th e commercial. Eventually, however, astronomers may not be more able to prevent th e commercia l blightin g o f the heavens than compute r scientists can prevent th e commercializatio n o f the Internet . In th e meantime, perhaps ou r shor t attentio n spa n wil l save us; that is , we 180

The Commercia l Cultur e • 18 1

may quickl y los e interes t i n eve n a reprogrammable celestia l bill board, thereby making it commercially unattractive . Unfortunately, ou r capacit y for disbelief—whic h ma y also hav e saved us from stratospheri c billboards—can b e made irrelevant over time through desensitization . Fo r the present, we may be surprise d by the commercializatio n o f public schools , the renamin g o f publi c streets fo r commercia l sponsors , Jani s Joplin' s Mercede s pitch , restroom advertising , the Shake r hymn "Simple Gifts" in the servic e of materialism, an officia l commercia l bottled wate r o f a papal visit, the corporat e sponsorshi p o f the computerize d ag e progression o f the image s o f missin g children , the commercia l transformatio n o f the Olympics or of sports in general, commercials durin g subsidize d long-distance phon e calls , the commercializatio n o f public parks i n exchange for modes t contribution s to city budgets, or the projectio n of a particula r Cadbur y bran d log o ont o th e dom e o f St . Paul' s Cathedral. In fact, ou r initia l astonishment ma y sometimes stick . The us e of St. Paul's, for example , was based o n a misunderstanding an d wa s not repeated . And there are, for th e moment, n o celestia l billboards. One pleased shoppe r foun d i n a $3 bin a t a discount stor e a pair o f designer sunglasse s that ha d sol d for $27 5 the previous year. On th e whole, though, betting against the gradual proliferation o f commer cial values is not advised . Many factors see m relevan t t o explainin g why commercialism ha s become pervasive . Some ad s are entertaining an d qualif y a s an ar t form. More important, much commercia l speec h offers usefu l infor mation abou t useful products . Increasingly, commercialism trie s to enter ou r airspac e under ou r radar by seeking to undermine th e conventional distinctio n betwee n commercial advertising and entertainment programming, or even real

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life itself . Some commercial s eve n have commercial s neste d withi n them. The aim is not just to stave off a d saturation bu t als o to dela y jadedness, boredom, and defensivenes s a s well. Perhaps the need fo r advertisers to go to such lengths provides some grounds for optimism . Recently, some advertising has been thought to add to the value of the product or , in a metaphorical sense , to be actually what the con sumer i s buying. That is, we might buy an item less for itsel f than t o associate ourselve s with th e perceived merit s o f the commercia l o r with som e aur a o r messag e tha t th e commercia l i s though t t o impart. I n suc h cases , advertising involve s little "waste" or "ineffi ciency," contrary to what is commonly argued . After all , one pai r o f athleti c shoe s ma y no t see m muc h bette r than another , apar t fro m th e commercial' s theme , imagery, mood , technical sophistication, or celebrity endorser. Accordingly, one possible commercial them e i s that som e o f us are too sophisticate d t o buy shoes on the basis of crass commercialism. Instead, we buy them because the maker recognizes our resistance to hucksterism. Many of us resent th e excesses of commercialis m an d materialism , but jus t not seriously or consistently . In a sense, it i s even a bit misleadin g t o sa y that w e have com e t o endorse commercia l values. We do no t reve l in commercia l values . Rather, our commercialis m ha s led us to lose interest in, or the skills and tim e for , alternative ways of living. For example, pollsters wh o ask people what th e word democracy means to them ar e sometime s amazed by the extent to which young persons, in particular, refer t o the freedo m t o buy and consum e whatever the y wish, without gov ernment restriction . Thes e definition s o f democracy , b y th e way , usually d o no t cente r o n th e need s o f th e poor ; a consumptionis t democracy i s on e o f incommensurabl e an d unrestraine d taste s backed b y the abilit y to pay, rather tha n th e redistributio n o f pur chasing power. Playing on this conception o f democracy, advertisin g

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itself ofte n take s up th e them e o f individua l consume r choic e an d personal entitlement . In some measure, commercialization ha s taken the place of a now lost faith i n the competence an d authorit y of public institutions an d collective decision making. For many persons, for example , personal security is not ensure d by government a t any level. All politicians, of course, support reductio n o f crime rates . But for som e persons, the solution ha s take n commercial , individualize d forms : handguns , removable ca r radi o faceplates , sprays , antithef t device s fo r cars , locks, alarm systems , or eve n private securit y guards a s opposed t o the mutual assistance of neighbors. These are not, however, intended as genuin e solution s t o th e proble m o f crime . Indeed , t o a larg e degree, the y d o no t eve n dete r crim e s o muc h a s displac e i t ont o another victim with no commercialized defense . Commercialization mor e basically reflects a number of underlyin g societal trends. Advances in communications technology , urbaniza tion, increasing wealth itself, the Keynesian revolutio n i n budgeting , changes in famil y size , and th e decline of competing institution s al l have played some role. But it is surely too simple to say that commer cial advertising itsel f ha s not playe d a n independen t rol e an d onl y mirrors independent change s in American values. No doubt , advertisin g b y itsel f canno t reshap e ou r value s a s though they were modeling clay. It is difficult t o believe, though, that over time, advertising i n the aggregate has had absolutel y no powe r to legitimize, reinforce, stabilize , or graduall y modify thos e values, even a t th e margins . Sometimes wha t w e do i s determined no t b y our failur e t o thin k o f a n alternativ e but b y whether w e think tha t alternative is normal, attractive enough , or considered embarrassin g by others. This is the natural space of advertising's efficacy . Even i f person s wan t t o repudiat e consumptionis t lifestyles , the y may have difficulty doin g so. People may feel that they have to wor k

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long hour s fo r a variety o f reasons , including th e nee d t o pa y fo r past—as oppose d t o future—consumer purchases . The necessity to work long hours, for an y reason, requires time, energy, and attentio n and thus slows the development o f less consumptionist lifestyles . In addition, we generally do not seriously and consistently wish to reduce ou r consumptionism . Rather , our attitude s ten d t o be con flicted, an d howeve r unsatisfie d w e may be with focusin g undul y o n consumption, we find i t difficul t t o giv e it up. Ironically, if we cu t ourselves off fro m consumptionism , we would be disruptin g man y of the familiar bases on which we relate to other people. Our lives are commonly filled with stresses and responsibilities that at best are difficult t o manage, and advertisin g an d consumptio n offe r som e sor t of relief. In recen t decades , advertising has typically not been judgmental . It tells us that we deserve, and ar e capable of appreciating, what th e commercials promise . I n earlie r decades , ad s migh t hav e create d stress an d fear—an d the n sough t t o reliev e them—but thi s tech nique i s now less common. Today's ads tend t o be less challenging . The mature adul t i n u s might wonder wh y we deserve a Caribbea n cruise, or even why we deserve a break today, whereas a Haitian sug arcane worker , fo r example , woul d not . Commercia l advertising , however, does no t alway s appeal t o ou r highes t powers , to dispas sionate self-assessment , o r t o persona l an d socia l responsibility . Instead, consumption, a s opposed t o most form s o f market produc tion, can often accommodat e a n essentially adolescent state of mind . In fact, even expensive items, such as automobiles, can be sold o n the basis of adolescen t rebellion , self-indulgence, an d aimles s defi ance. One recent automobile commercial even took this regressivism a ste p furthe r b y depictin g a car a s a toy to b e droole d ove r i n a n infantile fashion . Automobile s als o ar e pitche d i n other , mor e responsible ways. Given the need to break through the clutter of ads,

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we sometimes se e an opposit e but, in a way, an equall y incongruou s pitch, as in the cas e of a well-known insuranc e company' s a d tout ing, ironically, the virtue of self-reliance . The point i s not tha t commercia l advertisin g doe s not trea t u s as competent, mature adult s with certain limits and capacities. Instead, advertising take s whateve r approac h i t need s t o take . We d o no t always need or prefer t o be treated as less than mature adults. On th e occasions, however rare or frequent, when we would appreciate relief from th e pressure s o f maturit y an d th e unflatterin g judgment s o f others, commercial advertisin g ca n accommodat e us . Those occa sions d o see m to be increasingl y frequent , i f we judge them b y th e amount an d variet y o f judgmenta l an d fear-inducin g magazin e advertising in the first half of the twentieth century . Generally, the ability of advertising to adapt to changes in communi cations media , audience demographics , economic an d cultura l cir cumstances, an d eve n th e public moo d i s remarkable. Advertiser s seem almost limitlessly resourceful i n preserving their own commer cial utility over time. For this reason, it is difficult t o accept the thesis that consume r jadedness , the demis e o f broad, homogeneous mar kets, cynicism towar d ads , ad clutter, the mass abandonment o f tra ditional televisio n fo r ne w media , economi c depression , o r an y combination o f factors will dilute the cultural influence o f commer cial advertising. Just a s economic market s themselve s have histori cally overcom e o r accommodate d a wid e rang e o f challenges , commercial advertising has shown great adaptiveness . Advertising ha s alway s bee n force d t o devis e ne w o r t o recycl e responses to consumer boredom, for example , and boredom ca n se t in quickly . In certai n respects , the powe r o f advertisin g i s limited ; most does not have much authority, even in those cases in which it is noticed and remembered. After all , it would be odd for us as a society

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to ascribe only diminished authorit y to most of our major socia l institutions but to continue to treat advertising with unquestioned deference and respect. Some advertiser s appea r t o b e awar e o f thes e problems an d respond with more expensive ads, trendy ads, highly self-conscious ads, or more juvenile-spirited ads . A number of recent British ads seem to be based on the classic juvenile strategy of attracting attention through socially pointless misbehavior. The more self-referen tial and explicitly self-aware that ads become and the more that they recognize thei r rol e i n th e commercia l system , the easie r i t i s to imagine that they may be losing their ability to fulfill thei r traditional commercial role. Certain instabilitie s ar e buil t int o th e advertisin g system . For instance, will we always be incapable of doubting the meaningful ness of celebrity endorsements o f shoes, drinks, or snacks? More broadly, will we always be powerless to decide how much we wish to pay for designer labels? How much would we be willing to pay for clothes, accessories, automobiles, and so on if we were sure that no relevant third party regarded those brands as fashionable? Isn't fashion itself subject to deconstruction? Current patterns of commercialism may reflect fairly deep and stable ways of behaving. But our present commercia l culture is also not simply the reflection o f a fixed human nature. There is no guarantee that advertising and commercial speech will always be able to reconcile the tensions and conflicts arising in the broader system of producing and consuming goods. Consider, for example, the currently expanding gulf between the ethos of successful globa l competition in production and the ethos of consumption. In the world's major produc t markets, the necessary traits are still much as Max Weber described them: successfu l

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competitors mus t commonl y value investment, long time horizons , thrift, technica l curiosity , self-discipline, planning , precision, clarit y of thought , quantitativ e measures , deferra l o f gratification , an d guidance b y objective standards . However repressiv e w e may fin d this state of affairs, it still affects muc h of the production proces s and many workers in competitive industries . Our etho s a s consumers, o n th e othe r hand , diverge s fro m thi s model. As consumers, we are commonly flattered. We deserve whatever is offered, assumin g that we are able to pay for it . We are told t o obey our desires . We are indulged an d entertained. Demands o n ou r capacities in the sphere of consumption ar e kept modest. Even prin t ads do not ask us to read nearly as much as they did a half-century o r more ago . In sum , no t muc h i s asked o f us . An exceptio n ma y b e using a computer, but a t least the ads on the computer ar e not chal lenging, an d i n thi s aren a man y consumer s brin g som e expertis e from thei r producer/workplace roles . This contras t betwee n th e etho s o f production an d th e etho s o f consumption i s probably overly simple and, in some respects, inaccurate. Many of us , for example , would prefe r t o rea d a n essaylik e print a d from th e firs t hal f o f the twentieth century , at least on th e back o f a breakfast cerea l box, than endur e repeate d viewing s o f a television commercial essentially consisting of a single joke. Still, we mus t wonde r ho w lon g w e ca n successfull y compart mentalize such strikingly inconsistent treatments , forms o f address, self-images, an d broade r way s of thinking. More i s involved tha n a stable, recurring cycl e of disciplin e an d relaxation . Ou r capacit y t o lead doubl e live s is large but no t infinite . Ho w ca n we be sur e tha t our consume r etho s will not graduall y see p into th e real m o f pro duction, perhaps through ou r rol e as consumers o f high schoo l an d college education, in ways that hampe r th e growt h o f productivit y and the ability to compete internationally ? What i f it turns ou t tha t

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increases i n productivity an d succes s i n internationa l competitio n require mor e devotio n t o math , engineering , an d scienc e than w e find appealing ? The problem, contrary to frequent suggestion , is not that our economic syste m relie s on standardize d mas s production an d sale s to a mass marke t i n a n er a o f fragmentation . Advertiser s hav e adapte d quite well to the fact tha t televisio n viewing no longe r consist s o f a three-generation famil y gathere d i n fron t o f the Ed Sullivan Show. True, we are stil l subjected t o pitche s fo r standardize d product s i n the name o f expressing ou r individuality . There is, however, no rea son t o suppos e tha t th e economi c system , wit h th e assistanc e o f cybernetic technology , canno t accommodat e eve n rathe r narrow , parochial, but well-funded consume r tastes . The market ca n offer u s hundreds o f shades and tints, without strain , as long as we continu e to consume . Thus even though advertising and commercial speech face unprecedented challenges , the y als o hav e show n grea t adaptivenes s an d resourcefulness. I t i s difficul t t o say , therefore , muc h abou t th e prospects for eventuall y overcoming the general dominance o f com mercial values. Even on this modest basis, though, we should still resist the defeatism, the rationalizing, and the pseudotriumphalism o f some elements of the postmodernist left . Some writers have noted th e pervasiveness an d adaptabilit y of com mercialism and assumed that it was invincible. They then have rationalized, wit h les s justification , thi s resul t a s someho w bein g progressive. O f course , ther e ar e insight s t o b e draw n fro m suc h rationalizations, but the overall conclusion i s ill judged and counter productive. There indeed ar e progressive element s in the desire of much con temporary advertising to validate equally all segments of its targeted

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audience. If we are apparently valued an d catere d t o a s consumers , why shoul d w e accep t s o muc h les s tha n thi s a s a worker ? I f w e develop a protective carapac e o f cynicism , irony, or jadedness a s a response t o commercia l advertising , perhaps w e can similarl y dis tance ourselve s from politician s tha t d o no t promot e ou r rea l inter ests. Perhaps the postmodernist consume r shoul d b e most skeptica l of the idea that links consumption wit h human fulfillment. We cannot achiev e ou r greate r goal s i n lif e b y accommodatin g ourselves, however ironicall y an d sophisticatedly , to th e cultur e o f consumption. No r i s freedom jus t on e mor e arbitrar y construct . As we have seen, the liberation tha t ca n be achieved throug h commer cial consumption is , for mos t o f us, rather modes t an d trivial. Liberation in this limited sense still consists mainly of changing the mix of goods that w e consume, perhaps while thumbing ou r nos e a t som e real or supposed authorit y figure . The postmodernist impulse is to absorb all the progressivity it can fro m its underlying relativism an d mora l pragmatism. Such an impulse is thought t o promote th e interests of the subordinated i f such group s become suspicious of commercialism's claims . Unfortunately, the theory is extended well beyond skepticism toward the ideological distor tions of dominant groups. Instead of unmasking distortions of truth by those with power, the idea of pursuing any objective truth, however fallibly, is itself ofte n jettisoned . Truth i s reduced t o a vaguely define d group's perspective or convention. Anything more is said to be something dismissively called foundationalism . Whether this postmodernist downsizin g of the idea of truth reall y promotes th e interests of the least affluent i s an importan t questio n but no t a difficult one . We have seen that with the abandonmen t o f any possible objectiv e righ t o r wrong, the mora l logic of redistribu tive sacrifice i n favo r o f th e leas t affluen t evaporates . Indeed, wh y

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should a powerful grou p permanentl y abando n it s valuable privi leges beyond th e exten t dictate d by prudence, in the absenc e o f a n objective reason to do so? Such a sacrifice seem s especially incongruous an d absur d once we accept the logic of commercial consumption . Th e commercia l cul ture teache s u s the value o f personal acquisitio n an d spending . To the extent that we are influenced b y such values, we judge persons by what they have to spen d an d o n what the y acquire. This is a matter of spending on ourselves , our families , or ou r friends . Spendin g ou r own resources on strangers, and particularly on the least affluent, i s a matter o f charitabl e givin g as opposed t o th e cultur e o f consump tion. To redistribute wealth to the poor means that the more affluen t voluntarily leave themselves with fewe r resource s availabl e for con sumption an d thus in a commercially less favorable position . For the consumption minded , this borders on paradox . Can we say, though, that some currents of relativism and pragma tism ca n actuall y subvert advertisin g and the culture o f commercia l speech? Some elements of postmodernism ten d t o subvert an y text, or any favored readin g of that text, including advertisements. But it is difficult t o see why commercia l advertisin g coul d no t surviv e th e abandonment o f objectiv e trut h an d falsity . Consumptionis m ca n adapt more easily than most institutions to the abandonment o f epistemology. Consumption doe s not requir e dept h o r ambitiou s foun dations. Is there really any great tension between relativism regardin g truth, on the one hand, and the culture of advertising, on the other? If we decide that neithe r Cok e nor Peps i is objectively better tha n th e other, have we thereby barred thei r successfu l advertising ? Advertising can rely on truth a s merely a function o f group belief; the point is to increase the size of one's own consuming group. Let us consider two distinct activities , exciting an electron and excit ing a commercial customer . Generally , disdainin g objectiv e trut h

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impairs ou r abilit y to accomplis h th e first task . We cannot dismis s the truths of Bohr, Pauli, and Dirac as truths only for them an d arbi trarily posit som e alternativ e truth s mor e appealin g to us . Or i f we do, we will not accomplis h what we set out to do. The natural worl d is, in thi s sense , recalcitrant. Truth s abou t electron s ma y i n som e sense be socially constructed, but the y cannot be constructed i n an y way that we want. The real m o f commercia l consumptio n i s often different . I f w e wish to excite customers, it may not pay to fret muc h abou t whethe r our bran d o f col a i s objectivel y o r foundationall y bette r tha n it s rivals. The superiority of one brand t o another i s at best a relative or noncognitive matter . Bu t imag e ma y matter , eve n i f we build ou r image b y disclaimin g a n interes t i n it . I f w e canno t sa y tha t on e brand i s objectively better tha n another , the marketing process nee d not suffer . Instead , we can be made to feel strongly about matter s o f taste. The culture of consumption i s compatible with subjectivism . Denying objectivity, therefore, doe s not jeopardize th e culture o f consumption. Either it is clear that a product achieve s some observ able result, or i t is not. If it is, as in th e case of a safe an d successfu l commercially advertise d vaccine for a dreaded disease , the playful ness and deflation s o f postmodernism wil l be se t aside . If it i s no t clear, the product ca n adapt or die in an atmosphere of nonobjectiv e competing claims . In eithe r case , commercial market s ar e not dis solved in an acid bath o f relativism . Relativism b y itsel f offer s u s n o highe r value s tha n th e self - o r group-interested hedonis m o f commercia l advertising . It is sometimes argued , however, that commerc e ca n break dow n barrier s o f prejudice an d ignorance . In particular, it is argued tha t ou r cultur e of individual consumption create s tolerance and a reluctance to tyr annize. The clai m migh t b e that ou r consumeris t narcissis m leave s us both to o self-absorbe d an d without a metaphysical apparatu s t o hate or oppress others.

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There may well be something to such claims. Outsiders often find some sort o f commercial niche , but relativis m ha s no stron g logica l link to tolerance. Relativism migh t just a s well take the form, conve niently, of deferring t o the stron g and takin g advantage o f the weak. The weak might object to this, according to their own moral scheme. But it is the essenc e of relativism tha t on e is not boun d b y anothe r group's mora l scheme . One migh t choos e to incorporate th e inter ests an d preference s o f th e wea k int o one' s ow n mora l scheme , beyond th e dictate s o f prudence . Bu t then , a s w e hav e seen , wh y bother? Note that eve n today in the realm o f private charitabl e giv ing, there seems to be a shift towar d various middle-class, albeit worthy, recipients. Charity may be increasingly stayin g i n th e donor' s neighborhood an d not crossing economic class lines. To the extent that we are absorbed b y commercial consumption , we may indee d becom e to o bus y o r to o narcissisti c t o hate . Bargai n hunting may lead us to outsiders. Certainly, great personal wealth can take th e edg e of f confrontation . O n th e othe r hand , w e mus t as k whether young persons would be assaulting, and occasionall y killing, people for jewelry or clothing in the absence of a culture of commer cial consumption. We should loo k carefully befor e w e conclude tha t consumptionism inoculate s us against hate and divisiveness. Let us look, for example , at recen t development s i n the fields o f racial and ethni c relations , hate crimes , anti-immigrant sentiment , attitudes towar d welfare recipients , capital punishment, sentencin g reform, and the availability of habeas corpus before we conclude that our preoccupatio n wit h acquisitio n an d spendin g has enhanced ou r tolerance of our neighbors . Those areas in which we all do get alon g better may be explained without appealing to consumptionism. Tha t is, we should no t be too quic k to assum e that ou r disinclinatio n t o fight blood y wars is driven by our desir e to consume . For instance ,

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did the Persian Gulf War have nothing to do with the availability and price of petroleum ? If some people on th e postmodernist lef t hav e tried to rationaliz e the influence o f the commercial culture , many on th e cultural righ t and, of course, on the economic right have been eage r to react in a n at least equall y accommodating fashion . We have already seen tha t religious groups, wherever they may stand on the political spectrum , have an incentive t o mut e thei r criticis m o f the commercializatio n process. Probably the religiou s institutions ' best reaso n fo r down playing any criticism o f commercialism i s considerateness. It is no t clear how realistic it is to expect large numbers of responsible adult s to abandon thei r commitmen t t o commercial values. Even asking a young person to abandon consumptionism i s difficult. I f it is unrealistic to expec t this, however muc h everyon e involved migh t wish i t otherwise, it is not clea r that religious groups will press the issue. On the other hand, religious groups could at least clarify the issues more tha n the y have . Beyon d som e minimall y necessar y point , encouraging compartmentalize d o r inconsistent thinkin g abou t th e role of material goods encourages unnecessary self-indulgence. Mos t religious groups , for example , think o f greed , vanity, covetousness , envy, and cupidit y as vices. On the other hand, many of their adher ents evidentl y distinguis h betwee n thes e vice s an d th e desir e fo r many expensiv e materia l possessions . A wish t o posses s expensiv e material goods is thought o f as normal rather than vicious. Unfortu nately, this distinction ca n become s o blurred a s to merely rational ize the aforementioned vices . Some cultura l conservative s hav e underplaye d th e tension s an d incompatibilities withi n thei r overal l social beliefs. The destructive ness of nearly ubiquitous advertising and commercial marketing o n shared famil y activitie s i s a n example . Efficienc y i n advertisin g

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probably requires sending different messages , and therefore differen t television programs , to differen t famil y members . Commercialis m contributes i n this and othe r ways to atomizatio n an d t o privatiza tion within the family . Those on the cultural right have generally reserved their criticis m for the still small percentage of non-misleading advertisin g that the y find objectionabl e o n independent grounds , such as a reliance on sex and violenc e o r a n envelope-pushin g vulgarity . Th e mor e typica l advertisement, incorporating non e o f these features, passes withou t objection. Consumptio n i s viewe d a s th e necessar y obvers e o f a healthy system of economic production . Although som e peopl e o n th e cultura l righ t offe r broade r cri tiques o f commercialization , thei r idea s ar e usuall y dismisse d a s snobbish and elitist, despite their roots in the basic themes of writers such a s Adam Smith . Contemporary conservatis m ha s been increas ingly divided between religiou s movements an d marke t apologetics . If the voice of most majo r religiou s groups is muted o n th e issue of commercialization, w e should expec t th e conservativ e respons e t o commercialization t o be one of overall support . Economic conservativism joins with muc h o f contemporary liberal ism in deferring t o the market's revealed preferences. O n thi s point , the libera l justice s o n th e U.S . Supreme Cour t ar e difficul t t o tel l from th e conservatives . Both group s se e non-misleading advertise ments o f legal products, at least to adults, as a valuable form o f fre e speech i n which informatio n i s conveyed o r a potentially mutuall y beneficial transactio n i s proposed. I f anyone , including a govern ment, for an y reason, does not car e for suc h speech, the proper rem edy, even i n th e cas e of tobacco o r liquor advertising , is said to b e counterspeech. All else is governmental paternalism . Another similarity between economic conservativism an d much of contemporary liberalis m i s that neithe r seem s muc h intereste d i n

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what is culturally necessary to sustain marke t institutions , or libera l institutions, in a reasonably stable fashion ove r time. Too often, mar kets and liberal institutions are thought t o require only a police forc e and the availability of schools, families, and other intermediary institutions. To the extent that these institutions themselves reflect volun tary choices, it might be thought tha t market an d liberal institution s are broadl y self-sustaining . Lef t t o themselves , alon g wit h lega l enforcement, market s are thought to be broadly self-perpetuating . This assumption, however, is likely to be wrong. We have seen, for example, a dangerous gap between the qualities and skill s needed b y successful worker s i n internationall y competitiv e market s an d th e lessons abou t ourselve s a s consumer s imparte d b y commercia l advertising. Consider th e possible effect o f a culture o f consumptiv e indulgence o n ou r massiv e public an d privat e collectiv e indebted ness and ou r neglec t to maintain ou r infrastructure . Althoug h thes e problems see m manageable now , there is something a bit unsettlin g about our current high levels of personal bankruptcies during a prolonged period o f fairly low overall unemployment an d interest rates. But we can tak e a range o f attitude s towar d th e well-being o f ou r successors. We can sacrific e o n thei r behalf and , until recently , have done so . At the opposite extreme , we can indulg e ourselve s by borrowing for the sake of current consumption an d then present the bill to futur e generations , wh o ar e no t no w i n a positio n t o sto p us . There i s nothing abou t marke t exchang e tha t ensure s tha t w e will always sacrifice s o that future generation s will be better off . Beyond som e point, imposing th e cost s of current consumptio n on unconsenting parties can be socially destabilizing. Any increasing disinclination t o inves t i n huma n capital , i n eithe r ourselve s o r future generations , is unlikely to be compatible with long-term suc cess in a globally competitive economy. How people choose to spen d their tim e an d resource s eventuall y affect s thei r rea l productivity . Ultimately, a commercial society' s succes s or failur e require s mor e

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than, fo r example , allowin g peopl e individuall y o r collectivel y t o choose between curren t consumptio n an d investmen t base d simpl y on thei r ow n curren t preferences , howeve r thos e preference s wer e culturally shaped . It is thus fair to say that uncritical support and accommodation fo r the cultur e o f consumptio n ca n be foun d a t various point s o n th e political spectrum . Thu s i t i s not surprisin g tha t eve n som e o f th e more controversial features of commercial speech receive enthusiastic protection across the ideological range of the current Supreme Court . To challenge this consensus is certainly not to privilege hard work, production ove r consumption , o r asceticism . Our poin t i s not tha t production i s nobler than consumptio n o r that the value of production i s always independent o f commercial consumption . Productio n can, as much of the human race routinely observes, be alienating and degrading. Commercial consumption a t its best can be uplifting an d ennobling or , at least, fulfilling. Overall , however, the effect s o f a n emphasis o n consumptio n ar e not conduciv e to nobility or, for tha t matter, to happiness or freedom . Let u s conclud e b y referrin g briefl y t o a public dilemma , th e lin k between th e current ideologie s o f commercialization an d the prob lem of environmental managemen t an d renewal . Assume that ther e is no clea r an d simpl e relationship betwee n commercializatio n an d the threat t o the environment. I t is true tha t noncommercia l activi ties can threaten th e environment. Certai n form s o f production an d consumption ca n have widely varying effect s o n th e environment , and there is no reason to suppose that the production an d consump tion of a basic necessity like paper o r health care must be more environmentally friendly tha n would be the case with a luxury good. Most other things being equal, we would expec t increasing risk to the environment a s levels of production an d consumptio n rise . Not

The Commercia l Cultur e • 19 7

all else , however, nee d b e equal . We hav e independen t choice s t o make regardin g antipollutio n technologie s an d investments . W e should no t expec t t o be abl e to predict change s i n level s of ai r an d water pollutio n merel y fro m change s i n consumptio n levels . Any level of consumption ca n be achieved in more and less environmen tally responsible ways. Still, there is good reason to believe that consumptionis m i s competing wit h environmenta l concerns . For example , think o f Con gress's recurrin g desir e t o sel l of f publi c lan d fo r commercia l development. Or consider the activity of consumer recycling. From a psychological standpoint , recyclin g use d good s an d container s requires mor e o f th e discipline d etho s o f productio n tha n o f th e indulgent etho s o f advertisin g an d consumption . Recyclin g can b e tedious, unglamorous, messy, and inconvenient . I t may amount t o an imposition, with its own scheduling imperatives. Recycling brings little of the flattery , self-indulgence , an d socia l display often associ ated with advertising and consumption . Recycling can occasionally be linked to the ethos of consumption , as whe n on e buy s a n environmentall y friendl y househol d good . Major purchase s o f an environmentally friendl y ite m coul d eve n b e objects o f Veblenian conspicuou s display . Generally , however , w e must expec t les s enthusias m fo r voluntar y recyclin g t o th e exten t that the ethos of consumption displace s the ethos of production. By analogy, we may be less willing collectivel y to pa y for cleanin g u p Superfund site s because we see such cleanups as detracting from ou r current consumption . Both conservatives and liberals have reason to be concerned abou t the environment. For economic conservatives, pollution i s a negative externality not incorporated int o the prices agreed on by willing buyers and sellers. For some cultural conservatives, pollution may involve waste or the dissipation o f an inheritance. For liberals, pollution i s a

198 • Th e Commercia l Cultur e

burden typically imposed on the politically or economically powerless. None of these approaches by itself, or even in combination, is likely to lead to an optimal level or distribution of pollution. We must also consider the gradual strengthening of the ethos of consumption, as contrasted with the ethos of production. In some respects, a clean and healthy environment is commercially marketable, as in some residential real estate contexts. But environmental purity is not as widely advertised as are other more tangible or divisible goods with which it competes. Being commercially unspoiled does not receive much reinforcing publicity. The causal relationships at work here may be subtle, difficult t o show empirically, and long term, without thereby being worthy of dismissal.

Commercialization and th e Statu s of th e Poo r Babbit wa s agai n dreamin g o f th e fair y child, a dream mor e romantic than scarle t pagodas by a silver sea.

c o n c l u s i o n

If commercialization i s both pervasive and unfulfilling, wh y don't we recognize thi s an d tr y t o mak e change s fo r th e better ? W e hav e offered a number o f answer s i n thi s book. Le t us emphasize agai n one o f the most disturbing : the commercializatio n proces s change s not only what we value but also what we are capable of valuing. Thus it may hinder our very capacity for enjoyin g less commercial values. For example , suppose a society undertakes wha t we call an arm' s length contractualizatio n o f marriage . Person s ente r int o arm' s length contractua l marriage s because they recognize that to o ofte n 199

200 • Conclusio n

the ideal of trust, sacrifice, and long-ter m commitmen t i n marriag e masks inequality, vulnerability, and exploitation . Whether th e arm' s length contractua l or , more simply , the com mercially modele d marriag e ca n reall y abolish th e inequalit y an d exploitation o f earlier marriage patterns is, at best, debatable. In an y case, it is difficult t o believe that commercialize d form s o f marriag e amount to the summit of human fulfillment . Ye t for many of us, they now may be the best of which we are capable. Can we all, through a n effort o f will, set aside commercialized form s o f marriage in favor o f long-term commitment, trust, and self-sacrifice withou t exploitatio n or inequality? Ca n we even imagine what this ideal might be like, let alone be capable of approaching it in practice? Or thin k o f th e ar t an d skil l of extende d socia l conversation . I s there any guarantee that ou r devotio n t o television, work schedules , computer games , and on-lin e cha t room s will not erod e ou r abilit y to engage in and enjo y various kinds of extended, face-to-face socia l conversation? Won't we instead assum e that such conversation reall y deserves its marginal role in our lives? Finally, conside r th e possibilit y tha t th e commercializatio n process will one day exercise a more general influence ove r what we think o f as moral an d immora l behavior . We may already be seein g an elemen t o f this in the increasing commercialization o f marriage . Why shouldn' t w e expect notion s o f moralit y t o b e affecte d mor e generally by commercial norms and values? Of course, in some ways, this expectatio n migh t b e progressive. But i t is difficult t o believ e that moralit y should trac k commercia l values and curren t pattern s of commercial buying and selling. Setting aside such broad speculations, let us return to the subject of the poor. Those concerned wit h poverty in our societ y may wonder what sor t o f relationshi p wit h th e commercia l cultur e i t i s i n th e interest of the poor to have. We noted the generally weak relationship

Conclusion • 20 1

between consumption an d happiness but exempted the poor. We saw some o f th e way s i n whic h th e cultur e o f consumptio n undercut s freedom. Yet the problem o f poverty, almost by definition, seem s t o bespeak insufficien t participatio n b y the poo r i n just tha t culture . There is an obvious sense in which the poor d o not fully share in th e material bountie s o f a commercial culture . But ther e woul d b e a n equally obvious irony in concluding merely that the poor deserv e t o be a s full y incorporate d int o th e commercializatio n o f value s a s everyone else does. We are not suggestin g that th e poor ar e normally exclude d fro m the commercializatio n process . Their mone y works just a s well a s anyone else's does. Although no t man y marketers target their effort s exclusively to the poor, there ar e exceptions. In particular, the poo r in the United State s and elsewher e form a disproportionate founda tion o f consumer suppor t fo r th e tobacco companies . We can eve n imagine the poor being appealed to on the Internet, if only on publi c terminals heavily larded with advertisements . The poor ar e also directly connected with the commercial cultur e and it s values in the form o f televised advertising . Less directly an d more benignly, the poor partake of whatever price reductions accru e through advertising , eve n i f the y ofte n stil l pa y mor e tha n riche r people do . No doub t th e poo r benefi t i n som e economi c respect s from th e commercialization process . It would be a mistake, however, to conclude that the culture of con sumption i s in n o respect s antithetica l t o the interest s o f the poor . That is , the social devaluing o f the poor i s not a new phenomenon . Historically, man y societie s hav e devalue d thos e wh o hav e neve r been i n a position t o offe r muc h i n th e wa y o f economi c value . Our society , though , i s comin g t o b e somewha t differen t i n thi s regard.

202 • Conclusio n

As we have seen, in ou r society , commercial values and interest s have ascended t o dominance. This has meant, quite independent o f anyone's intention, that other competing systems of value have gradually diminished i n importance , in a complex, uneven process . But one clear inference i s that we are increasingly judged o n th e basis of our ability—past , present , or future—t o contribut e usefull y t o th e commercial culture . There are, of course, other ways of judging per sons, or of extending and withholding honor and respect. Such ways are, however, currently fading in importance . Increasingly, then , th e poo r ar e judge d mainl y o n basi s o f thei r poverty, or their limited abilit y to sell their asset s in the commercia l marketplace. Mos t o f th e othe r possibl e ground s fo r respec t ar e gradually becomin g weaker . Althoug h thi s argumen t canno t b e linked to every cultural trend o r fad , this process seems consistent , for example , with the recent bipartisan impatienc e with welfare an d even with welfare safet y nets. Our society' s aim shoul d not , of course, be to accord dignit y an d respect to the poor solel y in conjunctio n wit h thei r poverty . Surel y the mos t importan t ste p is relieving the poverty itself. Indeed, thi s task is morally compelling, even if many of us find increasingly alien the idea of reducing ou r ow n levels of commercial consumptio n i n order to enhance those of strangers. Suppose though, for the sake of argument, that as a society we are able and incline d t o mak e substantia l inroad s agains t involuntar y poverty. Ca n w e imagin e a futur e i n whic h thos e person s newl y delivered fro m povert y do not enthusiasticall y embrac e th e cultur e of consumption , wit h al l its eventua l limitation s an d disappoint ments? Thi s ma y be unrealistic . Instead, a n embrac e o f consump tionism may be irresistible for most of those somehow brought fro m the margins to the center of our commercial culture .

Conclusion • 20 3

What we can do for the poor i n this regard, beyond relieving their poverty, corresponds closely to what we should be doing in our ow n narrow interests . We should rethin k ou r recen t exaltatio n o f com mercial speech. Permitting the reasonable regulatio n o f commercia l speech might contribut e to a broader process of "denaturalizing" the currently dominan t cultur e o f consumptio n an d o f legitimizin g other approaches to contemporary life . We began thi s book wit h a brief tou r o f th e Arrid-Mentos Junio r High School , an amalgam o f satire and fact . As time passes, the por tion of the Arrid-Mentos story that is satire diminishes, and the por tion tha t i s fac t increases . Predictably , thos e school s caterin g t o relatively poor childre n wil l be especiall y affected b y the commer cialization o f their education , despit e the limited buyin g power o f poor childre n an d their families . Many producers have little interest in addressing the poor, even as a captiv e audienc e i n schools . Others , however , see th e poo r a s a market t o be tapped. Usually , public school s attende d b y the poo r are, given their lac k of funding, eve n less able to resis t an y outsid e funding tha n ar e schools attended by the middle class. Two hundre d dollars fro m a burger chai n will buy basic supplies, pocket calcula tors, portable heaters , or book cover s that a poor schoo l coul d no t otherwise afford. Give n their financial need , where will poor school s draw the line on the commercialization o f education ? No on e imagines that a rigorous compariso n o f the thickness o f Prego's and Ragu' s spaghetti sauces is an adequate substitute for , say, a microscope an d som e prepared slides . To some schools , however, poverty and the lack of resources conspire to make a spaghetti sauc e competition th e most practical pedagogical option . The commercialization o f poor children's education is ironic: those persons who are least well placed to rely on commercia l solution s t o

204 • Conclusio n

life's difficultie s wil l be precisely those mos t thoroughl y indoctri nated int o th e belief tha t th e bes t solution s ar e commercia l ones . Those least able to buy happiness i n commercial markets will, given the realitie s o f schoo l fundin g an d ou r broade r socia l structure, b e those mos t insistentl y told, in an d ou t o f school , that happines s i s for sale .

n o t e s

Notes to the Introduction 1. Se e Deborah Stead , "Corporations, Classroom s an d Commercialism, " New York Times, January 5,1997, pp. 30, 32.

Notes to Chapter 1 1. Ada m Smith , "Theory o f the Mora l Sentiments, " p. 309 in L . A. SelbyBigge, ed., British Moralists, vol. 1 (New York: Dover, 1965) . 2. Se e Ronald K. L. Collins and David M. Skover, "Commerce and Commu nication," Texas Law Review 7 1 (1993): 697, 707. 205

206 • Note s t o Chapte r 2 3. 42 5 U.S . 748, 762 (1976 ) (quotin g Pittsburg h Pres s Co . v. Pittsburg h Comm'n o n Human Relations , 413 U.S. 376,385 [1973]) . 4. 44 7 U.S. 557, 561 (1980). 5. Id. at 566. 6. Se e Posadas d e Puert o Ric o Assocs. v. Tourism Co. , 478 U.S . 328, 341 (1986). 7. Edenfiel d v . Fane, 507 U.S. 706 (1993). See also Ibanez v. Florida Dep't of Business and Professional Regulation , 11 4 S. Ct. 2084,2089 (1994) . 8. Fo r further discussion , see the various opinions in 44 Liquormart, Inc. v. Rhode Island, 11 6 S. Ct. 149 5 (1996). 9. Cit y of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993).

Notes to Chapter 2 1. Se e "Regulations Restrictin g the Sal e and Distributio n o f Cigarette s an d Smokeless Tobacco Products t o Protect Childre n an d Adolescents," Federal Register, August 11,1995 , pp. 41314, docket no. 95N-0253. 2. Se e generally the discussion in Jef I. Richards, "Politicizing Cigarette Advertising," Catholic University Law Review 45 (1996): 147,154. 3. Fo r references to , as well as conflicting view s of, som e of the relevant lit erature, see, for example , Martin Duffy , "Econometri c Studie s of Advertising, Advertisin g Restriction s an d Cigarett e Demand : A Survey, " International Journal of Advertising1 5 (1996): 1; Jean J. Boddewyn, "Cigarette Advertising Ban s and Smoking : The Flawe d Polic y Connection, " International Journal of Advertising 1 3 (1994): 311; Rachel Nowa k an d Eliot Marshall, "New Studies Trace the Impact o f Tobacco Advertising," Science, Octobe r 27 , 1995 , p . 57 3 (whic h discusse s th e wor k o f th e behavioral epidemiologis t Joh n Pierce) , as well a s much o f th e impor tant work of Richard W. Pollay, including, for example , Richard W. Pollay et al. , "The Las t Straw ? Cigarett e Advertising an d Realize d Marke t Shares Among Youths and Adults, 1979-1993, " Journal of Marketing 6 0 (1996): 1. 4. 12 7 Dominion Law Reports 4th 1 (1995).

Notes t o Chapte r 4 • 20 7

5. Th e Canadian stud y is cited in RJR-MacDonald, Inc . v. Attorney Genera l of Canada, 12 7 Dominion Law Reports 4th 1 (1995): 49-50. For relevan t British studies , see, for example , Hilary Graham, "Cigarette Smoking : A Light on Gende r an d Clas s Inequality in Britain?" Journal of Social Policy 24 (1995) : 509; Joy Townsend, Pau l Roderick , an d Jacquelin e Cooper , "Cigarette Smokin g b y Socioeconomic Group , Sex, and Age: Effects o f Price, Income, and Healt h Publicity, " British Medical Journal, October 8 , 1994, p. 134. 6. Fo r supportin g data , see , fo r example , Kathlee n M . Macke n e t al. , "Smoking Pattern s i n a Low Income Urba n Population : A Challenge t o Smoking Cessatio n Efforts, " Journal of Family Practice, January 1991 , p. 93; Jendi B . Reiter, "Citizens o r Sinners? : The Economi c an d Politica l Inequity o f 'Si n Taxes ' on Tobacc o an d Alcoho l Products, " Columbia Journal of Law and Social Problems 2 9 (1996) : 443, and "Smokers: Th e Young, the Poor, and the Less Educated," The Women's Letter, Novembe r 1990, p. 4; B. P. Zhu e t al., "The Relationship Between Cigarette Smokin g and Educatio n Revisited, " American Journal of Public Health, Novembe r 1996, p. 1582.

Notes to Chapter 3 1. Fo r a discussion, see Peter Lipton, Inference to the Best Explanation (Lon don: Routledge, 1991), chap. 8. 2. Gre g Miller , "9 Firm s Charge d wit h Fraudulen t Ad s o n Internet, " Los Angeles Times, March 15,1996 , p. ID.

Notes to Chapter 4 1. See , for example , Mary Williams Walsh, "German Cour t Ban s Shockin g Benetton Ads," Los Angeles Times, July 7,1995, p. A6. 2. Fo r furthe r discussion , see Ian G . Evans and Sumandee p Riyait , "Is th e Message Bein g Received? Benetto n Analyzed, " International Journal of Advertising 1 2 (1993): 291.

208 • Note s t o Chapte r 5

3. See , for example , R. Georg e Wright , Reason and Obligation (Lanham , MD: University Press of America, 1994) , chap. 5. 4. Se e Jane R. Eisner, "In a Blink, TV's Family Hour Ha s Been Replaced b y Racier Fare," Philadelphia Inquirer, February 4,1996, p. E5.

Notes to Chapter 5 1. Newto n N . Minow an d Crai g L . LaMay, Abandoned in the Wasteland: Children, Television, and the First Amendment (Ne w York: Hill & Wang, 1995), p. 54. 2. Se e 47 C.F.R. § 73.670 note 1 (1995).

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i n d e x

Ad proliferation, 8,36,37,149,181-82 , 184-85 Ad reinforcement, 36-3 7 Advanced Research Projects Agency, 112 Advertising and relativism, 143-47,153, 189-92 Advertising and smoking rates, 84-88 Advertising as product, 182 Anti-consumption ads , 142-43,18 2 Arrid-Mentos Junior High, 1 -3,9-11,203 Authority and the Internet, 131-3 2 Autonomy, 35,46-50, 53,159

Conspicuous consumption, 42 Consumption an d future generations , 195-96 Consumption an d regressivism, 184 Consumption and the environment, 196-98 Consumption a s creative self-expression , 169-70 Controversial ads, 8,135-56 Counterspeech, 7,17,38,40 Cultural conservatism, 193-9 4 Cyberpayment, 120

Baby boom generation, 164-6 7 Benetton, 136-4 1 Bohr, Niels, 191

Definitions o f commercial speech, 54-61 Democracy as unregulated consumption , 182 Demographics of the Internet, 123-2 4 Designer sunglasses, 181 Dirac, Paul, 191 Direct advancement of interests, 65-66 Durkheim, Emile, 20

Carnegie Council on Adolescent Development, 158 Celestial billboards, 180-8 1 Central Hudson test, 61-71 Children and advertising, 9,158-64 Christmas, 39 Collective preferences, 41-4 2 Colonization versus range war, 113 Commercialism and marriage, 199-20 0 Commercialism and morality, 200 Commercialization o f sports, 115-16,18 1 Commercials and subsidized long distance phone calls, 181 Commodity fetishism, 21 Computer games, 159 Confucius, 19

Economic class and smoking, 80-82, 101-7 Educational television programs, 160-6 3 Elephantiasis of commercial culture, 9 Emerson, Ralph Waldo, 19 Epictetus, 19 Erasmus, 20 Ethos of consumption, 145,183,186-8 8 Expressive versus pragmatic regulation, 7-8,88-97 Externalities, 52

243

244 • Inde x Federal Trade Commission and misleading speech, 64 Federal Trade Commission and the Internet, 118 Flat fee Internet pricing, 128-3 0 Food and Drug Administration Regula tions, 82-97 Galbraith, John Kenneth, 22 Galileo and Cardinal Bellarmine, 84 Group stereotyping, 152,17 6 Hedonic treadmill, 30 Hierarchy on the Internet, 131-3 2 Hopkins, Claude, 43 Host-parasite relation, 39-40 Images of missing children, 181 Intelligent agents, 122 Internet, 8,108-34 Internet metaphors, 117 Joplin, Janis, 165,181 Kant, Immanuel, 20,147,178 Keynes, John Maynard, 22,183 Klingon noncommercialism, 163 Kwanzaa, 39 Liberal regulationism, 194-9 5 Lifestyle versus informational ads , 99-100 Liquor ads, 2-5,13 Markets as allegedly self-sustaining, 194-95 Marx, Karl, 19,21 Materialism versus vice, 193 Mill, John Stuart, 50, 51 Minority groups, 9,175-78 Misleading speech, 15,62-6 4 Montaigne, 20 Narcissism and tolerance, 192-9 3 Narrow tailoring, 66-71 National Science Foundation, 112 Natural and artificial needs, 34 "Negative" commercials, 43-44 Nonlinearity and the Internet, 134

Official bottle d water of papal visit, 181 Paradox of hipness, 142 Pauli, Wolfgang, 191 Performatives, 93 Poverty, 29, 30,104-7,200-204 Private commercial solutions to public problems, 126,18 3 Propositional versus atmospheric ads, 44-45,51 Pseudoprogressive ads, 8,136,147,168 Rebellion as consumption, 157-5 8 Regulation versus subsidy, 77 Religious groups, 193 RJR-MacDonald case, 97-101 Rorschach feminism, 170-7 1 Rousseau, Jean-Jacques, 19,20,3 0 St. Paul's Cathedral, 181 Self-referential an d self-conscious ads, 186 Sexism in advertising, 152-54,168-7 5 "Simple Gifts" and materialism, 181 Smith, Adam, 22,194 Smoking and economic class, 80-82, 101-7 Spaghetti sauce science experiments, 10-11,203 Spending and happiness, 26-29 Substantial interests, 64-65 Swedish Space Corporation, 180 Tawney, R. H., 22 Thoreau, Henry, 19,20 Times Square, 1 Tobacco advertising, 7,8,13, 78-107 Travis, Merle, 104 Two-tiered Internet, 126 Upanishads, 14 Veblen, Thorstein, 22,42 Weber, Max, 186-8 7 Women and advertising, 9,157,167-75 Wordsworth, William, 19 Zapping technology, 132-3 4