Blurring of Definitional Boundaries

Considering the character of commercial discourse, it is readily apparent why America's self­identity is bound up with commercialism. As we explained earlier, modern mass advertising in our culture seems to be other than what it is­it appears to be individualistic, familial, communal, political, patriotic, egalitarian, artistic, or scientific. Long ago, the advertising industry moved from an easily identifiable commercial posture, represented in the product­information or reason­why format, to a cultural posture most commonly exhibited in the lifestyle format so prevalent today. Speaking from a First Amendment definitional standpoint, it is increasingly difficult to demarcate the realms of the commercial from those of the political and cultural, to distinguish commercial expression from the most preferred forms of democratic speech. ²³¹ For example, is a cigarette company's campaign to celebrate the Bill of Rights a commercial or political venture? Is an alcohol company's campaign to publicize the dangers of drinking and driving a commercial or humanistic measure? Is a shopping mall association's campaign to "honor" our soldiers in the Gulf War a commercial or a patriotic gesture? Is a clothing company's campaign to "end racism and the killing of people in the streets" a commercial or a social message? ²³²

Assuming workable definitional boundaries could be set, what would be the result of placing mass advertising beyond the limits of constitutionally protected expression? Probably little. Given the enormous political and economic power of corporate advertising interests, such commercial communication would persist largely unencumbered by more than existing governmental regulations. Although allowing advertising restrictions for products clearly dangerous to health and safety, ²³³ American consumers typically have not seen fit to bite the mass advertising hand that feeds them. Realistically, much of the progressive broadside against commercial speech may prove to be politically meaningless, mere shadowboxing. Indeed, the success of the progressive agenda depends on more than simply withdrawing constitutional protection from commercial speech. A bolder move is required. Some affirmative steps in the form of regulatory controls must also be taken before the progressives can recapture the old self in our new culture. Recall that the defenders of the old self argued that commercial speech "is directly at odds with the aim of the first amendment" and that it "denigrates rather than affirms human liberty." ²³⁴ With commercial speech cast as a clear and present danger to free speech values, the constitutional restraint urged by the progressive must be accompanied by political action. ²³⁵

In reality, the progressive attack on commercial speech is an attack on our capitalistic culture. With romantic spirit, the progressive hopes to overthrow the latter by undermining the former. And, indeed, given the omnipotence of mass advertising in America, there is some logic in undoing capitalism by assaulting one of its mainstays. Logic notwithstanding, the progressive must confront a perplexing political problem: How can a free speech theory with strong socialist or even neo­Marxist overtones be adopted by a capitalistic culture? Part of being the American capitalistic culture is having the American mass advertising system. Advertising has become an essential thread in the American cloth. Ultimately, the progressives' radical critique is likely to fail because consumerist America would inevitably recognize that one cannot remove the thread without unraveling the cloth.