Advertising pleads the first
Wulf, Melvin L.
ADVERTISING PLEADS THE FIRST THE GREAT AMERICAN SMOKE-IN MELVIN L. WULF T he great free speech struggles of the recent past have risen from the anti-Communist turmoil of the fifties and the...
...They understand that the freedoms protected by the First Amendment are meaningless unless they are exercised...
...The best way to do that is to prohibit all tobacco advertising...
...The theory is that because of their enormous financial success, radio and television broadcasters would much prefer to spend all their broadcasting hours on the kind of programs which attract maximum commercial interest, and maximum revenue...
...My purpose is to keep the social purposes of the First Amendment in mind while quarreling with the fairness doctrine...
...Good question...
...Whoever can afford to buy space or time should be allowed to...
...It isn't easy to define the full scope of human activity which I intend to include in this category, but it is what we would by consensus refer to as all endeavors related to art, science, culture, social organization, and politics, the ways in which humanity attempts to express and define itself...
...But the television networks and newspapers of general circulation should be thought of as First Amendment common carriers...
...I suppose what we want are more frequent public affairs programs which stimulate the audience to think about social and political problems, and which increase and raise the level of political discourse across the whole spectrum of public affairs...
...and we do have lots of sports programming...
...If Congress passes legislation to bar tobacco advertising, as it should, would it be held constitutional by the Supreme Court against a First Amendment challenge...
...Because while classic free speech cannot be suppressed in the absence of clear and present danger, a compelling state interest — or one or another such judicial formulation which imposes a very heavy burden on the party seeking suppression — commercial speech can be regulated...
...Second, is the First Amendment's application to television and radio broadcasting...
...They fear that controversy will cost them money...
...It is an irrefutable scientific fact — no matter what fatuous denials The Tobacco Institute occasionally publishes — that smokers run three times the risk of sudden cardiac arrest than non-smokers, that smokers run up to twenty-five times the risk of lung cancer, that smoking is the major contributor to emphysema, and that women who smoke during pregnancy run an increased risk of spontaneous abortion, stillbirth, and premature delivery...
...And despite some different constitutional considerations which must be taken into account where the electronic media are concerned, the refusalof the Supreme Court even to review the lower court decision is a strong sign of what its attitude will be towards a universal ban...
...I put it in quotations because it is a phrase which has acquired the status in law of a term for art with a precise definition...
...If we want serious communication, we read books and a few journals and newspapers...
...Some societies still entertain this fear and refuse to run the risk of a free press...
...The major constitutional question affecting television and radio is the extent to which the First Amendment applies to broadcasters...
...v. Public Service Commission, the Supreme Court held that regulation of commercial speech will be upheld if "the regulation directly advances the governmental interest asserted, and...
...On the issue of tobacco advertising, who could quarrel with the claim that the world would be healthier if its inhabitants didn't smoke...
...If an individual involved in a public issue is personally attacked, he or she must be notified of the attack and offered an opportunity to reply...
...The right is both positive and negative...
...In my judgment, commercial speech is of a different order from speech which is entitled to the fullest protection of the First Amendment and should not be treated as equal to speech which is ideational and humanly expressive...
...The law is too fixed in accepting differential treatment...
...But there are two important First Amendment issues on the national agenda which are yet to be resolved, and which will become increasingly visible as their opponents and proponents crank up for major battles...
...In making decisions to encourage or discourage certain activities, we compare benefits to cost...
...These special aspects of the nature of corporations make them subject to broad regulation and control...
...Neither can the government regulate the contents of the advertising space of print media, with one minor exception...
...I must add that the ethical duty to accept controversial advertisements has limits...
...It may be true, as broadcasters claim, that the burden of presenting competing sides of a controversial issue discourages presentation of all controversial issues...
...In Manhattan and parts of Los Angeles perhaps, but not as a general principle...
...I think so...
...Both have announced their support for a total ban on cigarette advertising...
...Its beneficiaries may learn that being protected by a principle is only partially satisfactory — that full constitutional satisfaction requires exercise of rights across the spectrum...
...My constitutional case begins by drawing distinctions...
...That must surely have amused the marketing geniuses on Madison Avenue, who seduce us with promises of romance and cattle 76: Commonweal round-ups, and then abandon us to addiction...
...Most smokers I know today make the same concession, but say they can't break the habit...
...Radio and television broadcasters are certainly part of the "press" explicitly protected by the First Amendment, and a strong doctrinal case could be made for similar treatment...
...I think we should give television and radio the same chance to be free that we have given, with great success, to the print media...
...Which is not to say that broadcasters should reject Mobil's editorial advertisements, or others with which they disagree or which they believe are too controversial...
...By and large, newspapers of general circulation accept that responsibility...
...The ACLU concedes the different treatment of commercial speech...
...But television is enormously influential and enormously bland, centrist, and non-committal...
...In contrast is the area of expression denoted as "commercial speech...
...The Supreme Court held the fairness doctrine constitutional in 1969 against a First Amendment challenge by broadcasters...
...Given the case against tobacco use, I believe that a total ban against tobacco advertising does not violate any First Amendment principle, and that it would be upheld by the Supreme Court of the United States...
...Under present law, they need not do so...
...The only way to find out is for Congress to suspend the fairness doctrine for a period of time, five years perhaps, and see what happens...
...It can even be suppressed, if there is a reasonable relationship between the condition believed to require regulation and the particular form of regulation adopted to achieve the desired result...
...Notwithstanding what addicts and The Tobacco Institute tell us, smoking has no redeeming features...
...The evidence to date that tobacco advertising in fact is a substantial reason why persons begin to smoke, or continue to smoke once they start, is largely unpersuasive...
...It is wrong to force ideology down anyone's throat...
...A statutory prohibition by Congress of tobacco advertising will pass the test...
...Smoking or non-smoking...
...The number of stations is inherently limited by the nature of the electronic spectrum...
...Catholic journals have no duty to accept Planned Parenthood ads, black newspapers have no duty to accept K.KK ads, and Jewish journals needn't accept ads favorable to the PLO...
...The other major issue involving broadcasting and the First Amendment is whether broadcasters should be required by law to sell time for controversial advertising, either commercial or ideational...
...The cost of smoking is illness and death...
...Its influence is frightening, and I dare not even guess where it will take us...
...Bless them...
...And it just may be that, if liberated from that yoke, broadcasters will become more adventurous, more like their print colleagues, than they are now...
...Broadcasters, like newspapers, should continue to have the right freely to accept or reject whatever advertisements are offered to them...
...We won't know unless we give them the chance...
...78: Commonweal journals, or broadcasters with a specialized mission have a duty to accept advertisements which they find objectionable...
...If television is to broadcast controversial programs, must we not protect ourselves by requiring presentation of each side of the controversy so that we can theoretically make up our own minds, rather than be seduced by the tube's hypnotic, one-sided presentation...
...I think that it is possible — not certain, just possible — that the industry might arise to the occasion...
...The difference in treatment between print and electronic media, said the Court, lies in their technological differences...
...I don't want to take up that quarrel today, however, because I would lose it...
...These are significant issues because of the enormous persuasive power inherent in television broadcasting...
...13 February 1987: 79...
...A second issue is whether radio and television are required to sell advertising time to whoever demands it...
...The Court will not doubt the government interest in protecting the public health, for the data are overwhelming...
...The main players in the arena are, one one side, The Tobacco Institute, which represents the industry, and the advertising agencies which have $2 billion of billings at stake...
...Today there is hardly any political or social issue which will not be heard in the land — if there is anyone to advocate it...
...Indeed, a complete ban on cigarette advertising on radio and television was upheld by the courts against a First Amendment challenge fifteen years ago...
...Ah well, maybe it will, but they make enough to be able to afford it...
...There is also the difference that the power of government to regulate economic activity (including commercial speech) is virtually exhaustive...
...The doctrine, a creation of the Federal Communications Commission, requires broadcasters to include programming on public issues and to give fair coverage melvin L. WULF practices law in New York...
...That is the ACLU's fundamental mistake...
...There are some smokers who defend their habit on the ground that they enjoy it...
...Congress gave that power to the Federal Communications Commission fifty years ago...
...My best answer is that I like to think that the First Amendment is something of a self-fulfilling prophecy...
...That issue was resolved fifty years ago during the New Deal era, when the Supreme Court conceded — under threat by Roosevelt to "pack" the Court with justices of a different persuasion — that the power to regulate economic activity belonged to the legislature, not the judiciary...
...Ioppose the fairness doctrine because I believe that, no matter the technological distinction between print and electronics, the First Amendment has been such a success in providing the nation with an abundant and diverse press, it should be given a chance to work its inherent genius upon the electronic media also...
...Having conceded all of that, however, the ACLU opposes proposals to prohibit tobacco advertising...
...Because there is general consensus that the benefits of the automobile are so significant — for pleasure or for transportation — that the costs suffered by society, including deaths and injuries, do not justify a national campaign to discourage use of the automobile...
...It's a bit optimistic, but so is the First Amendment...
...What programming is it for which we can thank the fairness doctrine...
...The question is whether we should thank the fairness doctrine for what little public affairs programming we now get on television or whether we would get more without it...
...The spirit of the First Amendment demands it...
...Commercial speech is generally uttered on behalf of corporations, i.e., artificial creatures of the state which acquire unusual powers and privileges, including the quite special right of limited financial liability...
...Its official statement of policy allows government regulation of commercial advertising which involves fraud, deception and misrepresentation, regulation of the financial and securities markets, advertising of forbidden products and activities, and unenumerated threats to public health and safety...
...As long as there is some rational relationship between the government's economic objective and the means taken to achieve it, the courts will not now presume to interfere...
...The distinctions between commercial and non-commercial speech are so obvious and significant, that even among those who believe that commercial speech should be protected by the Constitution, there is general agreement that the First Amendment is not to be applied to commercial speech with the same rigor as to non-commercial speech...
...Selling a beer, a refrigerator, or a cigarette is qualitatively different from expressive activity which is "selling" political, artistic, cultural, and social opinions and beliefs...
...The main question is: Should broadcasters have the exclusive power to decide for themselves what to broadcast, or should Congress, representing the public interest, impose affirmative broadcasting obligations on the stations...
...Broadcasters should accept the same responsibility...
...He was legal director of the American Civil Liberties Union from 1962 to 1977...
...Perhaps the world will eventually be populated with zombies under the total domination of whoever gains control of the television system...
...You bet advertising works...
...By and large, that is what they do...
...On one hand we have literal speech, oral and printed, which is used to express ideas, to argue political beliefs, to debate cultural values, to present the news, to gossip, to communicate...
...What programming do we expect it to deliver...
...I know because I smoked for thirty years until I was able to kick the habit twelve years ago...
...Together with some adolescent peer pressure and addictiort, it is a major reason people smoke...
...Also, being organized solely for the purpose of making money, they acquire a disproportionate power because of their financial resources, which can be and has been used to dominate portions of public life...
...Where newspapers, magazines, and books are concerned, the First Amendment is an inflexible shield against government action...
...Only so many stations may occupy the spectrum, and the government, quite properly, exercises the power to allot the available slots to multiple applicants...
...to both sides of those issues...
...They are not the "natural persons" that the First Amendment is intended to protect...
...If a television station broadcasts a program opposing the death penalty, proponents must be given time to reply — not equal time, just some time...
...In my judgment, the law should not be changed...
...The fairness doctrine requires broadcasters to include public issues programs and to give fair coverage to both sides of such issues...
...I think the same fear was expressed when Gutenberg built his printing press...
...Its benefits — apart from profits for the tobacco and advertising industries — are ephemeral and insignificant...
...One could quarrel with that basic principle on the ground that, once applicants are authorized by the FCC to broadcast, they should have precisely the same First Amendment protection as their 13 February 1987: 77 colleagues in the newspaper business...
...Whereas government is barred from interfering with the print media, the law allows government to interfere every day with the news and editorial judgments of broadcasters...
...To the contrary, they should accept the advertisements as part of their public responsibility...
...On the other side are the American Medical Association and The American Cancer Society...
...ADVERTISING PLEADS THE FIRST THE GREAT AMERICAN SMOKE-IN MELVIN L. WULF T he great free speech struggles of the recent past have risen from the anti-Communist turmoil of the fifties and the civil rights movement and Vietnam War protests of the fifties, sixties, and seventies...
...In its major 1980 commercial speech case, Central Hudson Gas and Electric Corp...
...This premise of the tobacco ad-ban advocates is in substantial doubt...
...And if it has any reservations about the utility of a total advertising ban, a majority of today's members of the Court will not question the judgment of the Congress that a ban on tobacco advertising is a rational way to discourage smoking...
...It totally ignores the extent of damage done to the public, and demands scientific proof that advertising makes people smoke...
...The owner or editor decides what is to go in or stay out, and the government can neither require that anything be printed nor forbid the printing of anything...
...In 1973 the Supreme Court upheld a state statute forbidding newspapers from publishing employment ads which invite racial, sexual, or religious discrimination...
...And that doesn't even take into account the programming of cable television, which has expanded the menu exponentially...
...While anyone with the financial means can publish a newspaper or a magazine, financial means is not the only factor involved in establishing a radio or television station...
...Whoever has the resources to start a newspaper or a magazine, or to publish books (or produce films or plays), has complete freedom to decide what to publish...
...Give television and radio broadcasters the same freedom as their print colleagues and see what happens...
...Maybe we already are and don't know it...
...It includes the activities which are properly to be protected by the First Amendment's guarantee of free speech and free press...
...The Congress would need to build a credible case that banning the advertisements would improve public health...
...It comes up most concretely now around the question whether to prohibit cigarette advertising...
...With inevitable but minor exceptions, the proponents of freer speech were vindicated...
...But the ACLU is also on their side, lending the industry some respectability...
...If people didn't smoke, the incidence of death and disease would be reduced...
...Selling products docs not possess the qualities of "self-expression, self-realization, and self-fulfillment," as the Supreme Court puts it, that are inherent in non-commercial speech...
...And crank up they will, because, unlike earlier free speech debates which involved poor students, poor blacks, and poor anti-war activists, these proponents and opponents have big bucks and will use them to protect their cash flow: # First, is whether business advertising is protected by the First Amendment...
...I do not believe that newspapers...
...You hear the argument that if cigarettes kill, so do cars...
...Under the present system, one cannot say that television is a serious medium of communication...
...The purpose of the fairness doctrine is to attempt to make broadcasters civicly responsible by requiring them to devote time to public affairs...
...Here the principal issue involves the fairness doctrine...
...They do not because revenue is more important to them than high standards or journalism...
...On the other hand, we do have some good theater, domestic and imported...
...Though the courts hold that radio and television are protected by the same First Amendment as the print media, they are treated very differently...
...It is speech whose purpose is to do "no more than propose a commercial transaction," as defined in various Supreme Court decisions...
...If the two industries with their obvious vested interests were alone in the struggle, it might not be taken too seriously...
...1 would be the last man in the world to deprive them of their pleasure...
...In Congressional testimony last summer, the ACLU's central argument was: It is not enough to assert that health would improve if persons stopped using tobacco...
...The fact that the ACLU is wrong in this case, does not detract from its seriousness of purpose...
...is not more extensive than is necessary to serve that interest...
...Though the prohibition flew directly in the face of the absolute protection of the print media by the First Amendment, the Court upheld the law on the ground that such advertisements were merely commercial speech, which was not then protected by the First Amendment...
...Having the right to exercise that power, the Congress and the FCC, says the Court, also have the right to impose conditions on successful applicants...
...The one major effort this century to censor the press, by enjoining publication of the Pentagon Papers in 1972, was beaten off by the courts, though some room was left for another attempt at another time in other circumstances...
...The power of television is one argument for government regulation...
...You may ask how I can reconcile my reservations about the timidity of television executives who are afraid to run controversial ads, with my optimistic view that, if freed from the fairness doctrine, they will suddenly become courageous journalists...
...Why not prohibit automobile advertising...
...13 February 1987: 75 When I was a smoker, I knew I would be better off not smoking...
...A bill has been introduced in the House to do just that...
...But we should try to prevent or at least discourage non-smokers, especially teenagers, from taking up the dangerous habit...
...On the other side is the argument for the First Amendment...
...There is pressure being applied to change that rule, led by Mobil Oil's campaign conducted in the newspapers because broadcasters won't run Mobil's editorial ads...
...I think we may be surprised...
...on the other hand, speech which is expressed symbolically as in the plastic arts, poetry, and literature, and all the other artistic forms, including films and plays...
Vol. 114 • February 1987 • No. 3
