Printed Page 341

Advertisements are considered commercial speech—defined as any print or broadcast expression for which a fee is charged to organizations and individuals buying time or space in the mass media. Though the U.S. Constitution’s First Amendment protects freedom of speech and of the press, it doesn’t specify whether advertisers can say anything they want in their commercial speech, so the question of whether commercial speech is protected by the Constitution is tricky. In some critics’ view, certain forms of advertising can have destructive consequences and therefore should be regulated. These include ads that target children, that tout unhealthy products (such as alcohol and tobacco), that prompt people to adopt dangerous behaviors (such as starving themselves to look like models in magazines), and that hawk prescription medications directly to consumers instead of to doctors.

To be sure, no one has figured out just how much power such ads have to actually influence target consumers. Indeed, studies have suggested that 75 to 90 percent of new consumer products fail because the buying public doesn’t embrace them—suggesting that advertising isn’t as effective as some critics might think.⁴ Nevertheless, serious concerns over the impact of advertising persist.