Historically, the First Amendment has been construed as a way of protecting unpopular voices from government retribution, not as a way for corporations to flood the airwaves with their promotions and points of view. But in the 1970s the Supreme Court extended First Amendment protection to advertising, or in legal terms, “commercial speech.” The rationale was that advertising conveys important information to consumers and is necessary to the smooth functioning of a free market economy. Over the past two decades, the commercial speech doctrine has evolved to afford nearly the same level of First Amendment protection to corporate commercial speech as it does to individual political and artistic expression. Graff discussed five challenges that the commercial speech doctrine poses for public health, along with some opportunities to address them.
The Concept of the Rational Consumer
The first challenge involves the Supreme Court’s justification for extending strong First Amendment protection to advertising. This justification holds that truthful advertising is essential to the smooth operation of the free enterprise system because it relays concrete information that consumers use to make “intelligent and well-informed” purchasing decisions. In other words, the commercial speech doctrine is built on a rational choice theory of human behavior. This view led the majority of Supreme Court justices to reject what they characterized as “paternalistic” government efforts to protect the public welfare. The premise is that the government should not meddle in what commercial speakers have to say to consumers because adults are perfectly capable of digesting all of this information to make logical economic decisions.
False and “inherently misleading” advertising is not protected because—in the words of the Supreme Court—“the public and private benefits from commercial speech derive from confidence in its accuracy and reliability.” However, suggested Graff, the legal construction of what counts as “inherently misleading” advertising is markedly narrow, given that most advertising is practically synonymous with emotional manipulation.
The fallacy in this approach is becoming clearer, said Graff, as research on how humans actually make decisions converges from fields including neuroscience, behavioral economics, developmental psychology, and addiction studies. If scientists strategically translated and disseminated findings from this research, they might eventually force courts to question the validity of the theory buttressing the commercial speech doctrine.