Advertising as the target of censorship

Definition: Censorship of commercial messages

Significance: Commercial speech is sometimes protected by the First Amendment, but not as broadly as other forms of speech

Radio and television commercials, billboard messages, print advertisements, and other forms of commercial speech are often unprotected from government regulation. In the United States, constitutional debate focuses on the extent to which the First Amendment protects commercial speech. In Great Britain, with no written constitution, political and commercial speech is more strictly controlled than in the United States. However, Britain is much freer in permitting advertisements for products and services such as contraceptives and abortion facilities, areas of commercial speech that have resulted in extensive constitutional debate in the United States. In Canada, the Canadian Charter of Rights and Freedoms, enacted in 1982, constitutionally protects speech broadly described as “thought, belief, opinion and expression,” restricting commercial speech only in the interests of protecting consumer groups such as children.

Historically, commercial speech in the United States has not been thought worthy of First Amendment protections. The eighteenth century, however, was a period of dynamic commercialism in the United States; had the authors of the Bill of Rights intended to exclude commercial speech from First Amendment protection, they could easily have so indicated. Even commercial messages protected by the First Amendment may still suffer censorship when newspapers, television stations, and other forms of media refuse to run an announcement because of pressure from consumer groups or because of the media’s own professional codes of conduct.

Commercial Speech and First Amendment Protection

Not until 1942, in Valentine v. Chrestensen, did the US Supreme Court decide whether commercial speech should be protected from government regulation. In the Valentine case, the Court upheld a New York statute forbidding the distribution of handbills containing commercial messages, reasoning that commercial advertising was unprotected speech. Although that decision’s cursory opinion was criticized for not clearly delineating between commercial speech and political speech, this decision stood for thirty years.

Starting in the 1970s, several Supreme Court decisions recognized limited First Amendment protections of commercial messages containing information deemed of such high public interest that its regulation would deprive the public of useful information. For example, in Bigelow v. Virginia (1975), the Court held that a newspaper in Virginia, where abortions were illegal, that ran an advertisement containing information about the availability of abortions in New York, where they were legal, fell within First Amendment protections.

Within a year of that decision, the Court afforded limited First Amendment protection to advertisements containing information that would otherwise be withheld under a state’s code banning advertising by such professional groups as pharmacists and lawyers. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), the Court extended limited First Amendment protection to commercial messages when the content not only proposed a commercial transaction but also included information about prescription drugs of great interest to consumers. This set a precedent under which members of highly regulated professions, such as lawyers, were allowed to advertise their services because of consumer interest in the message. The trend also extended to product labeling, with the Supreme Court deciding in Rubin v. Coors Brewing Co. (1985) that beer companies could indicate the alcohol content of their beverages, despite the view of the federal government that consumers should be protected from information that might lead to competition founded on alcohol strength rather than beer taste. However, just how much First Amendment protection was afforded commercial speech was still unclear by the late 1980s. In Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986), the Court upheld a ban on advertising of legal casino gambling, thus departing from its trend of offering commercial speech at least some protection from government regulation.

Commercial Speech and Political Speech

Court decisions denying free speech protections to commercial speech received intense criticism. Often it was impossible to differentiate between unprotected commercial speech and protected political speech, especially when the advertised product or service was associated with lifestyle preferences that rose to the level of protected political speech. For example, while the Supreme Court held that a drug company’s pamphlet mailed to consumers containing information about condoms was unprotected commercial speech, a Federal Trade Commission judge held that an editorial advertisement by the R. J. Reynolds tobacco company that disputed scientific evidence about the hazards of smoking should be protected. While this decision was later reversed, it illustrated the difficulty courts had in distinguishing between the two forms of speech. Indeed, some commercial speech is political speech when the message carries social and political implications.

Bans on Radio and Television Tobacco Advertising

In 1970, the Public Health Cigarette Smoking Act banned cigarette advertising on television in the United States. In 1964, then–surgeon general Luther L. Terry announced a connection between smoking tobacco and mortality. The ban, intended to decrease cigarette smoking, extended only to the publicly owned airways; cigarette advertisements continued to appear in newspapers, in magazines, and on billboards. One side effect was that revenue from cigarette advertisements increased significantly for magazines and billboard companies. Some magazines dropped cigarette advertising as a matter of public policy, but many continued or later resumed running the advertisements because of the substantial revenue cigarette advertisements represented.

Tobacco advertisements appearing in print and billboards are still heavily regulated, especially where those messages might be seen by minors. However, how a cigarette advertisement would differ if a minor rather than an adult might see it is unclear. The tobacco industry has generally managed this problem by using messages that indicate that smoking should be an adult choice. Nevertheless, newspaper groups such as Knight-Ridder pressed its newspapers to drop the Joe Camel character from advertisements for Camel cigarettes since young children recognized that figure as easily as they recognized their comic-book heroes.

In 1998, forty-six US states, four US territories, Puerto Rico, and the District of Columbia entered into the Tobacco Master Settlement Agreement with the nation's five largest tobacco companies. The agreement settled numerous lawsuits brought by the states against the tobacco industry to recover Medicaid costs incurred by the treatment of tobacco-related ailments. In addition to the financial terms of the settlement—annual payments of between $4.5 billion and $9 billion for the indefinite future—the agreement also imposed further restrictions on tobacco advertising within the settling states and territories. Billboards, public transportation ads, and other outdoor advertisements were banned, as were product placements, brand-name sponsorships, cartoon characters, and any other direct or indirect targeting of youth.

Tobacco advertising was further restricted in 2009 with the passage of the Family Smoking Prevention and Tobacco Control Act, which was explicitly intended to reduce the effect of such advertisements on youths. Among other provisions, the act banned the use of music and sound effects in audio or video advertisements and limited the visual aspect of video advertisements to plain black text on a white background.

Advertisements for Alcohol

Although cigarette commercials are no longer on television, federal rules do not forbid commercials for alcoholic beverages. However, television networks themselves have refused to air advertisements that connect alcohol consumption with social status, personal achievement, or stress relief. In addition, the commercials are not allowed to portray someone actually drinking the beverage. Some states and cities have enacted much stricter controls over the way alcohol is advertised. The state of Mississippi’s regulations effectively ban liquor advertising on billboards, in print, and on the airways. Similarly, in the 1990s, the city of Baltimore banned billboard advertising for alcoholic drinks. This ban was intensely criticized by advertising groups because of the ban’s First Amendment ramifications and because of the alleged paternalism of the ban.

Federal and State Regulations

With its inception in 1914, the Federal Trade Commission (FTC) became responsible for protecting consumers from deceptive advertising. Under its advertising substantiation program, the FTC investigates advertisements that do not reasonably substantiate their claims and so pose a potential risk to consumers. While deceptive advertising is illegal, and therefore not itself entitled to First Amendment protections, some forms of advertising that contain incomplete or scientifically controversial information may be banned by the FTC. The ban may then result in a void of information such that interested consumers remain unaware of competing views regarding the value of a medicine, diet, or other form of useful consumer information. The landmark case on this issue, In re Pfizer, Inc. (1972), involved a suntan product whose makers claimed it stopped sunburn pain, a claim made without benefit of scientific studies.

Over time, the FTC relaxed its policies, so long as any misrepresentation would not mislead its intended audience. However, state regulations, the advertisement industry itself in self-regulation, and private lawsuits took up the slack in regulating the speech of advertisers.

Industry Self-Regulation

Some censorship has been self-imposed by the advertising industry itself through associations such as the Advertising Self-Regulatory Council (ASRC), founded in 1971 as the National Advertising Review Council, which "establishes the policies and procedures for advertising industry self-regulation" in order to "[hold] advertisers responsible for their claims and practices." The ASRC's review process is administered by the Council of Better Business Bureaus. Compliance with its guidelines is voluntary, and the ASRC has no authority to enforce its findings, though it may forward cases to appropriate law enforcement agencies in cases of noncompliance.

Until the early 1980s, many television stations adhered to the advertising guidelines laid out in the National Association of Broadcasters' (NAB) Code of Practices for Television Broadcasters. Among other guidelines, the code deemed the advertising of "intimately personal products which are generally regarded as unsuitable conversational topics in mixed social groups"—a category that, in practice, included such products as toilet paper and contraceptives—to be "unacceptable." Starting around 1969, these standards gradually relaxed so that products such as genital deodorants, hemorrhoid treatments, and tampons were no longer considered taboo by the industry. The NAB suspended the code in 1983 due to the questioning of several of its provisions by the US Justice Department, and by the 1990s, commercials for condoms and other such "intimately personal products" were slowly making inroads into television, though usually with the public service message of disease prevention.

Boycotts from Consumer Groups

Various consumer groups have advocated for self-censorship of advertisements that otherwise fell outside government or industry regulation. For example, clothing companies that target young consumers have often offended groups such as child welfare advocates, religious organizations, and the American Family Association. In 1995 groups such as these promoted boycotts of Calvin Klein clothing when its advertisements featuring adolescent males and females modeling underwear appeared on television, in newspapers, and on billboards and posters. Because of the adverse reaction, the clothing company dropped the advertising campaign. The Benetton clothing company had experienced a similar negative response in 1992 when its advertisements featured controversial images such as floating condoms and a nun kissing a priest, reflecting contemporary issues such as the AIDS crisis, environmental problems, and political violence. Negative reaction to these commercial messages resulted in several magazines refusing to run the advertisements. However, in both the Calvin Klein and Benetton campaigns, the publicity gained from the apparent censorship boosted interest in the advertisements.

Stereotyping in Commercial Messages

Advertisers have not escaped the wrath of various groups who have seen negative stereotypes depicted in commercials. Beer commercials, for example, have often been criticized for depicting women as merely sex objects. One beer company used a “Swedish Bikini Team” of women in bikinis to promote its beer. This commercial was viewed by some as debasing women and as fostering sexual harassment. A television commercial for an automobile company was forced to change its depiction of a Charlie Chan character who spoke broken English to one who spoke standard English. Advertisers typically respond that to force changes in their commercials is censorship and that their commercial messages are targeted to particular segments of the population who respond favorably to their messages.

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