A New Age of "Reason"

Western civilization marked the eighteenth century as its "age of reason." The Enlightenment was a period of faith in human reason, of a confidence in the supreme power of rationality to govern all aspects of life. It was the time of Francois Voltaire, Denis Diderot, Immanuel Kant, and Sir Isaac Newton­ all champions of the mind's capacity to ferret truth out of a universe of information. A similar faith permeates the modern writings on commerce and communication. This faith borrows the rhetoric of its eighteenth century predecessor but applies it to a radically new context­modern mass advertising. From this context emerges a new age of "reason."

Michael Gartner, president of NBC News, echoes the Enlightenment's call for truth through reason in championing the cause of modern advertising. "Commercial speech is protected," he argues, "because it fosters informed decisionmaking among consumers. It maximizes the flow of truthful information to consumers so that they can make realistic choices as to their needs." ¹⁷² Beyond the borders of commercial television, a more sophisticated but comparable explanation comes from the legal academy:

When the individual is presented with rational grounds for preferring one product or brand over another, he is encouraged to consider the competing information, weigh it mentally in the light of the goals of personal satisfaction he has set for himself, counter­balance his conclusions with possible price differentials, and in so doing exercise his abilities to reason and think; this aids him towards the intangible goal of rational self­ fulfillment. ¹⁷³

And, of course, in Justice Blackmun's Court "the free flow of commercial speech" certainly "serves individual and societal interests in assuring informed and reliable decisionmaking." ¹⁷⁴

This "informational function" ¹⁷⁵ is central to the Court's approval of commercial expression as a form of protected speech. Indeed, of the major commercial speech cases in which governmental regulation has been invalidated, nearly all "involved restrictions on either purely or predominantly informational speech, such as the bans on price advertising." ¹⁷⁶ By comparison, governmental regulations were sustained in cases not involving "predominantly informational advertising." ¹⁷⁷ The Court's  rulings affirming the constitutional importance of commercial expression concerned advertisements akin to the classified communication model as we have described it. ¹⁷⁸ (Tellingly, some European laws explicitly draw distinctions between "informational and promotional advertising" with differing standards of legal protection. ¹⁷⁹)