Commercial Speech and Regulating Advertising

“There’s no law that says we have to sell you time or space. We sell time for many, many different things, but not controversial issues of social importance.”

JULIE HOOVER, VICE PRESIDENT OF ADVERTISING, ABC, 2004

In 1791, Congress passed and the states ratified the First Amendment to the U.S. Constitution, promising, among other guarantees, to “make no law … abridging the freedom of speech, or of the press.” Over time, we have developed a shorthand label for the First Amendment, misnaming it the free-speech clause. The amendment ensures that citizens and journalists can generally say and write what they want, but it says nothing directly about commercial speech—any print or broadcast expression for which a fee is charged to organizations and individuals buying time or space in the mass media.

While freedom of speech refers to the right to express thoughts, beliefs, and opinions in the abstract marketplace of ideas, commercial speech is about the right to circulate goods, services, and images in the concrete marketplace of products. For most of the history of mass media, only very wealthy citizens established political parties, and multinational companies could routinely afford to purchase speech that reached millions. The Internet, however, has helped to level that playing field. Political speech, like a cleverly edited mash-up video, or entertaining speech, like a music video by California teenager Rebecca Black singing about the weekend (the infamous “Friday” video on YouTube), can go viral and quickly reach millions, rivaling the most expensive commercial speech.

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ADBUSTERS MEDIA FOUNDATION

This nonprofit organization based in Canada says its spoof ads, like the one shown here, are designed to “put out a better product and beat the corporations at their own game.” Besides satirizing the advertising appeals of the fashion, tobacco, alcohol, and food industries, the Adbusters Media Foundation sponsors Buy Nothing Day, an anti-consumption campaign that annually falls on the day after Thanksgiving—one of the busiest shopping days of the year.

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Although the mass media have not hesitated to carry product and service-selling advertisements and have embraced the concepts of infomercials and cable home-shopping channels, they have also refused certain issue-based advertising that might upset their traditional advertisers. For example, although corporations have easy access in placing paid ads, many labor unions have had their print and broadcast ads rejected as “controversial.” The nonprofit Adbusters Media Foundation, based in Vancouver, British Columbia, has had difficulty getting networks to air its “uncommercials.” One of its spots promotes the Friday after Thanksgiving (traditionally, the beginning of the holiday shopping season) as “Buy Nothing Day.”