"New and Improved" Reason

Although the Court may be perceived as confining its holdings only to classified communication, ¹⁸⁰ Justice Blackmun and his colleagues have never expressly acknowledged this point. Not surprisingly, avid defenders of commercial speech rights interpret this silence as a license to apply the Court's principles to the full spectrum of modern mass advertising. "We trust individuals to evolve [commercial] preferences in a rational manner ...," argues Burt Neuborne. ¹⁸¹ Having hoisted the Enlightenment banner, Neuborne and others exhort us to treat all forms of legal advertising as if they were created equal. For First Amendment purposes, a "Spuds McKenzie" beer ad ¹⁸² presumably delivers as much information necessary to a commercial exchange as did our '76 Ford truck classified ad. ¹⁸³ If Neuborne and other commercial speech advocates were to deny this, then their routine justification of "informed" decisionmaking would be merely rhetorical flourish.

Even those who laud constitutional protection for commercial speech freely admit that government may regulate or even ban such expression if it is false or deceptive. ¹⁸⁴ This exception derives a good measure of its staying power from the firm commitment to reason in the marketplace: if commercial communication were to patently subvert informed and rational economic decisionmaking, it would frustrate the underlying constitutional objective. Hence, the glorified mission of agencies such as the Federal Trade Commission is to serve as the watchdog of truth in the marketplace, to preserve some quantum of the old reason in the new age of mass advertising.

By associating itself with the defenders of the old reason, modern mass advertising claims a high level of constitutional protection. But it does so talismanically. Merely by invoking the norm of informed and rational decisionmaking, imagistic advertising professes to promote it. Exploiting the weighty importance of reason for its own ends, such advertising does precisely what it does best: it appropriates the symbols of informational advertising, reconstructs them in its own image, and returns them to the legal community in the form of constitutional defenses. What is returned, of course, is not the old reason, but the "new and improved" version.

Distancing themselves from the defenders of the old reason, Judge Alex Kozinski and Stuart Banner feel no compunction to draw on Enlightenment rhetoric in making their constitutional case for lifestyle advertising. ¹⁸⁵ At the outset, unlike others, they recognize that the Court's pronouncements on commercial speech say little about how mass advertising actually works. Far from promoting a rational transaction, imagistic communication like a cola commercial "is not commercial speech at all because it does not even meet the threshold requirement of proposing a commercial transaction." ¹⁸⁶ For them, our "Spuds McKenzie" beer ad apparently invites the consumer to do nothing more than enjoy the dog's antics. Why, then, protect such expression? In large part, Kozinski and Banner believe that commercial expression cannot meaningfully be distinguished from other forms of protected communication; since much advertising appropriates our culture's political, religious, and social symbols, it falls under their constitutional umbrella. ¹⁸⁷

Following the Kozinski and Banner line, mass advertising need not don the garb of rationality. It might claim a high level of constitutional protection because it is part and parcel of most discourse, rational or not. Reason­why criteria are no more required in the sphere of commercial communication than they are in that of political communication. Thus, by merging the two spheres, the new "reason" argues that our commercial culture is beyond enlightenment.