Tamara Piety has posted her excellent article, “‘Merchants of Discontent’: An Exploration of the Psychology of Advertising, Addiction and the Implications for Commercial Speech” (25 Seattle University Law Review 377 (2001) on SSRN. Here’s the abstract.
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The commercial speech doctrine allows the government to regulate commercial speech so as to prevent advertising that is false or deceptive while forbidding suppression of truthful commercial information that is based on nothing more than misplaced paternalism. However, this limitation is largely illusory in the realm of traditional advertising because the processes by which advertisers convey their messages employs means such as pictures, symbols, and music, making it virtually impossible to try to test such advertising for its truth. Objections to commercial advertising or calls for stricter regulation often invoke the response that there is no harm in advertising and any regulation of it would be an imposition of elitist sensibilities, or furthermore, a slippery slope to totalitarianism. But we should not treat commercial advertising as largely harmless, argues Prof. Piety. Commercial advertising is a pervasive force which blankets our society and plays a noticeable hand in promoting harmful behavior or attitudes. Given its pervasiveness in the culture it is disturbing to note many parallels between the psychology of commercial appeals and that of addiction. Both appear to involve retreat to fantasy, escapism, a quick fix to problems, a numbing down or increased tolerance from overexposure, and the institution of a vicious cycle wherein consumption fails to really satisfy but sets up a dynamic into which satisfaction rests just out of reach with the next fix or the next purchase. Prof. Piety examines three areas in particular where values of equality or definitions of autonomy clash with First Amendment protection for advertising such as this: the advertising of addictive substances, advertising directed at children, and advertising that undermines goals respecting equality for women and suggest that the doctrine may need to be revisited in light of these issues.