Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976).

DAVID N. MARTIN, ROMANCING THE BRAND: THE POWER OF ADVERTISING AND HOW TO USE IT 9 (1989).

Jeff Silverman, TV's Creators Face a New Caution, N.Y. TIMES, Dec. 8, 1991, § 2, at 1, 31 (quoting Betsy Frank, vice president of the Saatchi & Saatchi advertising agency).

MADONNA, Material Girl, on LIKE A VIRGIN (Sire/Warner Bros. Records 1984) (written by Peter Brown & Robert Rans).

OLIVER WENDELL HOLMES, COLLECTED LEGAL PAPERS 270 (1920).

See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

Id.

Unless the context indicates otherwise, when we use the expression "commercial speech" or its equivalents, we refer to forms of communication that (1) either presume a seller­buyer relationship and/or enhance the ethos of consumption, (2) are mass­oriented, and (3) are primarily imagistic in character.

BURT NEUBORNE, FREE SPEECH­FREE MARKETS­FREE CHOICE: AN ESSAY ON COMMERCIAL SPEECH 19 (1987) (published under the auspices of the Association of National Advertisers, Inc., New York, N.Y.).

Saatchi & Saatchi became the world's largest advertising agency in 1986 by mergers and takeovers that created a company with $7.5 billion worth of business. See ERIC CLARK, THE WANT MAKERS 40 (1988).

While rational decisionmaking and individual self­realization are not the only normative values that theoretically may be promoted by the First Amendment, they are nonetheless the values most frequently invoked by courts and legal commentators to justify the extension of constitutional protection to expressive activities. See, e.g., THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 6 (1970) (arguing that free speech promotes the realization of human character and potentialities); ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 9­14 (1960) (proposing the "self­ governance" rationale for First Amendment protection of expression); Kent Greenawalt, Free Speech Justifications, 89 COLUM. L. REV. 119, 130­41 (1989) (describing the premises underlying the justification for freedom of speech); Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1, 2 nn. 1­2 (explaining that jurists and scholars often use the "marketplace of ideas" metaphor to legitimize First Amendment freedoms).

This section title derives from WILLIAM LEISS, STEPHEN KLINE & SUT JHALLY, SOCIAL COMMUNICATION IN ADVERTISING 1 (2d ed. 1990) (asserting that modern social influences derive largely from "the discourse through and about objects").

CHARLES PANATI, THE BROWSER'S BOOK OF BEGINNINGS: ORIGINS OF EVERYTHING UNDER (AND INCLUDING) THE SUN 167 (1984); see also GILLIAN DYER, ADVERTISING AS COMMUNICATION 15 (1982).

CHARLES GOODRUM & HELEN DALRYMPLE, ADVERTISING IN AMERICA: THE FIRST 200 YEARS 14 (1990).

Id. at 8.

Id. at 13.

See DYER, supra note 13, at 16.

See GOODRUM & DALRYMPLE, supra note 14, at 13.

See id. at 17.

See, e.g., MICHAEL SCHUDSON, ADVERTISING, THE UNEASY PERSUASION: ITS DUBIOUS IMPACT ON AMERICAN SOCIETY 180­82 (1984) (discussing the advancement of mass production and the "democratization," or broad consumption, of goods by the 1920s).

See GOODRUM & DALRYMPLE, supra note 14, at 23 (discussing how nationwide advertising familiarized consumers with new, trademarked versions of generic products); JULES HENRY, CULTURE AGAINST MAN 17­19 (1963) (discussing advertising's efforts to create new needs as mass production outstripped population growth); LEISS ET AL., supra note 12, at 153 (noting that advertising agencies shifted from "space sellers" to "sell[ing] the new national branded products").

See GOODRUM & DALRYMPLE, supra note 14, at 23 (describing the "role that advertising played ... in the introduction of new products­explaining what they were and how they were to be used"); LEISS ET AL., supra note 12, at 240, 280 (noting that during the "idolatrous phase," the lavish descriptions of [products'] qualities contained an unmistakable undertone of equally genuine pride in their manufacture"); T.J. Jackson Lears, The Rise of American Advertising, in AMERICAN MEDIA 257­58 (Philip S. Cook et al. eds., 1989) (discussing the ongoing feud in the first two decades of the 20th century between those who espoused "reason­why" copy to persuade potential buyers with facts, and those who proclaimed the best method to be "atmosphere" advertising, appealing to buyers' emotions with attractive pictures and little information).

See GOODRUM & DALRYMPLE, supra note 14, at 23­24 ("The advertisements had to explain the benefits [of the new products] ....").

See Lears, supra note 22, at 258 ("Each piece of reason­why copy contained a vigorous sales argument, crammed with facts and pock­marked with dashes, italics, and exclamation points.").

STEPHEN FOX, THE MIRROR MAKERS: A HISTORY OF AMERICAN ADVERTISING AND ITS CREATORS 50 (1985) (emphasis in original). Regarding reason­why copy, Fox has observed: "Instead of general claims, pretty pictures, or jingles, an ad should offer a concrete reason why the product was worth buying. Not charming or amusing or even necessarily pleasing to the eye, a good ad was a rational, unadorned instrument of selling ...." Id.

GOODRUM & DALRYMPLE, supra note 14, at 114.

LEISS ET AL., supra note 12, at 280. But see T.J. Jackson Lears, From Salvation to Self­Realization: Advertising and the Therapeutic Roots of the Consumer Culture, 1880­1930, in THE CULTURE OF CONSUMPTION: CRITICAL ESSAYS IN AMERICAN HISTORY, 1880­1980, at 18 (Richard W. Fox & T.J. Jackson Lears eds., 1983) (challenging the notion that "reason­why" advertising originally was more informative than emotive).

See LEISS ET AL., supra note 12, at 63 (noting that, from the 1920s forward, the consumer rather than the product became the "key ingredient" in the advertising "message system").

See id. at 63, 244.

See id. at 246­54, 272­74, 291­92.

See ROLAND MARCHAND, ADVERTISING THE AMERICAN DREAM: MAKING WAY FOR MODERNITY 1920­1940, at 358 (1985) (describing advertisements featuring personification).

DAVID M. POTTER, PEOPLE OF PLENTY: ECONOMIC ABUNDANCE AND THE AMERICAN CHARACTER 171 (1954); see also LEISS ET AL., supra note 12, at 155 ("Products are presented less and less on the basis of a performance promise, and more on making them 'resonate' with qualities desired by consumers­status, glamour, reduction of anxiety, happy families­as the social motivations for consumption."); id. at 291 ("Such information is not, except incidentally, the economist's information, which is composed of the product's characteristics, but rather the imagistic associations between the product and what is known about individuals and their expectations in life, including their feelings about status, peer­group influence, roles, [and] social mobility ...."); Sut Jhally, Image­Based Culture: Advertising and Popular Culture, WORLD & I, July 1990, at 507, 508 (noting the representations of people who "stand for" social values in image­product advertising).

CHARLES H. SANDAGE & VERNON FRYBERGER, ADVERTISING THEORY AND PRACTICE 191 (9th ed. 1975) (quoting Charles Revson).

Lears, supra note 22, at 265 (quoting James Collins).

MARSHALL MCLUHAN, THE MECHANICAL BRIDE v (1951).

SCHUDSON, supra note 20, at 63.

See LEISS ET AL., supra note 12, at 141 ("The soap operas were written by the agencies and usually revolved around emotionally excruciating family dilemmas. The challenge was to develop product 'tie­ins.' (The term 'soap opera' itself, of course, refers to the sponsorship of detergent manufacturers and testifies to the blending of advertising and programming.)").

GOODRUM & DALRYMPLE, supra note 14, at 45.

SCHUDSON, supra note 20, at 50 (emphasis in original).

LEO BOGART, STRATEGY IN ADVERTISING 5 (2d ed. 1990).

See Lears, supra note 22, at 260 (discussing how reason­why advertising became less fact­based as product differentiation became more difficult); see also SCHUDSON, supra note 20, at 62 (noting that with the increasing number of advertisements for similar competing products, advertising became less informative as it aimed to be more distinctive and memorable "with a few eye­ catching words or pictures").

GOODRUM & DALRYMPLE, supra note 14, at 45 (quoting Rosser Reeves).

Id. Moreover, the authors state: "[Marketers] frequently sold the identical product in four and five different packages at different prices and different sizes and different quantities to appeal to the different customer elites." Id.

LEISS ET AL., supra note 12, at 102; see also SUT JHALLY, THE CODES OF ADVERTISING 127­28 (1987) (describing segmentation strategies as "user­ centred").

LEISS ET AL., supra note 12, at 281.

See GOODRUM & DALRYMPLE, supra note 14, at 45 (discussing the advent of advertising strategies focused on the audience in response to the "challenge of the identical product").

LEISS ET AL., supra note 12, at 262.

See JHALLY, supra note 44, at 107 ("Much of the style and content of advertisements ... is structured and conditioned by how much time is available to work with.").

HAL HIMMELSTEIN, TELEVISION MYTH AND THE AMERICAN MIND 64 (1984); see also JHALLY, supra note 44, at 78­79, 123­24, 128 (explaining that advertisers tailor ads to appeal to the demographic market reachable by particular advertising spots).

HIMMELSTEIN, supra note 49, at 64.

See, e.g., BOGART, supra note 40, at 59 (discussing the use of different advertising strategies to reach different target audiences); JHALLY, supra note 44, at 170 ("[T]here is no one relation of people to things in advertising or one message that is communicated through advertising."); SCHUDSON, supra note 20, at 51, 64 (examining advertisers' attempts to tailor advertising according to the nature of the product and the target audience).

SCHUDSON, supra note 20, at 51, 64.

KURT VONNEGUT, JR., CAT'S CRADLE 32­36, 158­91 (1963) (describing a fictional substance, ice­nine, a "tiny grain" of which could teach atoms of water to "stack and lock, to crystallize, to freeze" in a "novel way," resulting in a chain reaction that could invade all objects and freeze the entire earth).

See BOGART, supra note 40, at 1­2.

LEO BOGART, GANNETT FOUND. MEDIA CENTER, THE AMERICAN MEDIA SYSTEM AND ITS COMMERCIAL CULTURE 6 (1991). A shorter version of this paper, with the same title, appears in MEDIA STUD. J., Fall 1991, at 13.

See MARTIN, supra note 2, at 104.

Information on file with the Center for the Study of Commercialism, Washington, D.C.; see also Julia Reed, Ads Where You Least Expect Them, U.S. NEWS & WORLD REP., Mar. 9, 1987, at 46 (reporting ads located on standard­sized billboards on trucks, on videocassette tapes, in computer programs, and between songs on rock albums).

See Edward C. Baig, Is Bigger Better for Philip Morris?, FORTUNE, May 8, 1989, at 69; see also Alex Kozinski & Stuart Banner, When Speech Isn't Free, PHILIP MORRIS, Summer 1991, at 26. Philip Morris Magazine was free to its readers, contributing to its vast circulation.

EDWARD J. WHETMORE, MEDIAMERICA: FORM, CONTENT, AND CONSEQUENCE OF MASS COMMUNICATION 272 (4th ed. 1989).

See, e.g., Ronald K.L. Collins & Michael F. Jacobson, Commercialism Versus Culture, CHRISTIAN SCI. MONITOR, Sept. 19, 1990, at 19 (noting that 1990 advertising expenditures exceeded $130 billion).

LEISS ET AL., supra note 12, at 352.

JOHN O'TOOLE, THE TROUBLE WITH ADVERTISING: A VIEW FROM THE INSIDE 89 (1980).

AL RIES & JACK TROUT, POSITIONING: THE BATTLE FOR YOUR MIND 8 (1st rev. ed. 1986).

Id. at 30.

Linda Benn, The Ethics of Advertising, WORLD & I, Dec. 1990, at 531, 534­ 35.

DYER, supra note 13, at 80 (noting that these qualities are "often confused with or transferred to the possession of things").

JHALLY, supra note 44, at 129 (emphasis in original).

Jhally, supra note 32, at 510 (quoting an unidentified advertising executive).

See JEAN BAUDRILLARD, Consumer Society, in SELECTED WRITINGS 10 (Mark Poster ed., 1988) ("If we consume the product as product, we consume its meaning through advertising.").

DYER, supra note 13, at 116.

See, e.g., Ronald K.L. Collins, Sexism for the Many, L.A. TIMES, Nov. 20, 1991, at B7 ("The everyday reality is that women's sexuality is used to sell things, their commodified bodies are plastered on advertising to stimulate men to buy things. Their very identity as autonomous persons is electronically transformed into media images of marketable chattel.").

JHALLY, supra note 44, at 50.

LEISS ET AL., supra note 12, at 352.

BOGART, supra note 55, at 2.

HENRY, supra note 21, at 50; see also STUART EWEN, ALL CONSUMING IMAGES 265 (1988) (discussing how even television newscasts stress the entertaining and dramatic elements of the news during ratings seasons).

See TORBEN VESTERGAARD & KIM SCHR<<theta>>DER, THE LANGUAGE OF ADVERTISING 167 (1985).

See Marcy Magiera, Spike Lee's "Malcolm X" Gets New Kind of Tie­Ins, ADVERTISING AGE, July 13, 1992, at 36.

See WILLIAM J. DOWLDING, BEATLESONGS 208­09 (1989).

THE BEATLES, Revolution (Apple Records single 1968). Interestingly, the same company that used Revolution to sell sneakers in 1987 recently launched a new ad campaign featuring John Lennon's Instant Karma. Whereas the former commercial stirred up protests from Beatles fans and a lawsuit from Paul McCartney, the latest effort to transform Lennon's sound into a sales pitch was undertaken with Yoko Ono's permission and has generated no critical response. See Paul Farhi, Well, We All Shine ... Shoes? Is There Any Song Madison Avenue Won't Steal?, WASH. POST, Mar. 22, 1992, § 6, at 1 ("Advertisers have been grafting popular songs onto ad campaigns for so long that no one complains, even when Aretha Franklin transforms a song that wasn't hers, 'Rescue Me,' into 'Deliver Me' for Pizza Hut.").

See ROLLING STONE, Jan. 1991, at 18.

WHETMORE, supra note 59, at 279.

Id. (emphasis in original). For an unconventional discussion of the "daisy field" ad, see MARSHALL MCLUHAN, CULTURE IS OUR BUSINESS 180­81 (1970).

In this regard, Judith Williamson has argued that the consumer's willingness to accept the illogical juxtaposition of products and images or ideas in commercial advertising is a function of two forces: the form of the advertisement itself (putting two objects side by side so that they coexist) and the false assumption that something "must 'make sense' simply because it exists" as it is shown. Thus, "a product and an image/emotion become linked in our minds, while the process of this linking is unconscious." JUDITH WILLIAMSON, DECODING ADVERTISEMENTS: IDEOLOGY AND MEANING IN ADVERTISING 30 (1978).

HENRI LEFEBVRE, EVERYDAY LIFE IN THE MODERN WORLD 110­23 (Sacha Rabinovitch trans., 1971).

HENRY, supra note 21, at 48.

Id. (emphasis in original).

Id. (emphasis omitted).

BOGART, supra note 40, at 7.

"Long live triviality!"

THE BEATLES, supra note 79. Consider in this regard the following observation by Torben Vestergaard and Kim Schroeder:

Because it ignores the substance of the meanings it appropriates, advertising can draw on the most unlikely referent systems and even use "ideas, systems, phenomena in society whose actual content and body of thought is hostile to advertising and might seem completely alien to it. But the more hostile, the better use advertising can make of it, for its recuperation from criticism then seems all the more miraculous."

VESTERGAARD & SCHR<<theta>>DER, supra note 76, at 164 (quoting WILLIAMSON, supra note 83, at 170).

Lears, supra note 27, at 21. Notably, Lears's observation came at least four years prior to the controversy over the commercial use of John Lennon's Revolution.

HENRY, supra note 21, at 65.

All Things Considered (National Public Radio broadcast, July 30, 1991) (transcript on file with the Texas Law Review).

Id.; see also Stuart Elliott, Benetton Stirs More Controversy, N.Y. TIMES, July 23, 1991, at D22.

VANITY FAIR, Mar. 1992, at 132­33 (advertisement); see also Paula Span, Colored With Controversy, WASH. POST, Feb. 13, 1992, at D1.

Gary Levin, Benetton Brouhaha, ADVERTISING AGE, Feb. 17, 1992, at 62.

VANITY FAIR, supra note 95, at 130­31 (advertisement).

Levin, supra note 96, at 62; ROLLING STONE, Apr. 19, 1992 (Spring Fashion Collection), at 18­19 (advertisement).

See Radio Station Tunes into Controversy with Boards, ADVERTISING AGE, Apr. 20, 1992, at 17.

See Sun­Sentinel (Palm Beach, Fla.), Mar. 29, 1991, at A4 (advertisement). Above this statement, the ad read in part: "This Easter, faith shines bright with [Company X's] unique crosses of semi­precious gems surrounded with diamonds. Gifts as beautiful as they are meaningful.... Blue Topaz cross, $1,650.... Large rubelite cross, $6,300. Also available in blue topaz, $4,995; peridot, $5,250; green tourmaline, $7,300." Not to be outdone, another company earlier advertised its own diamond, 18­karat gold cross pendant for $17,500. N.Y. TIMES, Mar. 24, 1991, at 3.

One possible explanation for the public's tolerance of advertising's communion with religious symbolism is that consumerism increasingly has become America's "new time religion" and advertising its greatest prophets. See Jhally, supra note 32, at 511 ("Some commentators have even described advertising as part of a new religious system in which people construct their identities through the commodity form and in which commodities are part of a supernatural magical world where anything is possible with the purchase of a product." (emphasis in original)); Father John Kavanaugh, New Time Religion: Accept Consumerism in Your Heart, ADBUSTERS, Winter 1993, at 18, 20­21 (commenting on commercial advertising in mass media as the new religion); Bill Kowinski, Graven Images, ADBUSTERS, Winter 1993, at 25, 25 ("By the advent of the '80s, Americans believed in consumption as salvation, as the only way they knew: shop 'til you drop, spend 'til the end, buy 'til you die. Buying was the new time religion, and the shopping mall its cathedral of consumption."); Kalle Lasn & Nicholas Racz, An Interview with Sut Jhally, ADBUSTERS, Winter 1993, at 22, 23 (asserting that the religion of advertising is more powerful than traditional religion).

See BUTLER'S LIVES OF THE SAINTS 149­51, 439 (Michael Walsh ed., 1985).

Levin, supra note 98, at 62 (quoting Oliviero Toscani, in­house creative director for Benetton).

Consider the statement of the former advertising executive Leo Bogart:

In this respect our culture differs from the cultures of other places and times, in which expression has either been valued as an end in itself or because of its ability to please a patron. Commercial culture assigns no value or meaning to communications apart from their market value, that is, the price that someone is willing to pay for them.

BOGART, supra note 55, at 2.

See RENE DESCARTES, MEDITATIONS ON FIRST PHILOSOPHY 101 (George Heffernan ed. & trans., 1990) (1641).

WILLIAMSON, supra note 83, at 46 (emphasis omitted).

See DYER, supra note 13, at 14 ("It [advertising] is a powerful tool of existing economic and social relations and as such has to purvey the values which perpetuate and endorse the current socio­economic structure ...."); see also WILLIAMSON, supra note 83, at 13 ("We are made to feel that we can rise or fall in society through what we are able to buy.").

SCHUDSON, supra note 20, at 210.

IVOR EVANS, BREWER'S DICTIONARY OF PHRASE & FABLE 417 (14th ed. 1989); see JOHN CIARDI, A BROWSER'S DICTIONARY AND NATIVE'S GUIDE TO THE UNKNOWN AMERICAN LANGUAGE 130 (1980) (defining fetish as "any object that attracts compulsive and excessive attention from a person or a cult").

Lears, supra note 22, at 263 (quoting an unspecified article in JUDICIOUS ADVERTISING).

Id. at 265 (quoting James Wallen).

See WILLIAMSON, supra note 83, at 148.

ROLLING STONE, Oct. 20, 1988, at 13 (advertisement).

WASHINGTONIAN, Dec. 1990, at 56­57 (advertisement).

WILLIAMSON, supra note 83, at 150 (citations omitted).

See, e.g., BOGART, supra note 55, at 5­6. A. Roy Megary, the publisher of the Toronto Globe and Mail, observed: "By 1990, publishers of mass circulation daily newspapers will finally stop kidding themselves that they are in the newspaper business and admit they are primarily in the business of carrying advertising messages." CLARK, supra note 10, at 317 (quoting Megary).

LEISS ET AL., supra note 12, at 102.

See IAN MITROFF & WARREN BENNIS, THE UNREALITY INDUSTRY: THE DELIBERATE MANUFACTURING OF FALSEHOOD AND WHAT IT IS DOING TO OUR LIVES 47 (1989); Susan Cohen, Kidvideo Games, WASH. POST, Apr. 7, 1991, § F (Magazine), at 18­21, 34­ 41. For a comprehensive survey on commercial advertising trends directed toward children, see CONSUMERS UNION EDUC. SERVS., SELLING AMERICA'S KIDS: COMMERCIAL PRESSURES ON KIDS OF THE 90'S (1990) [hereinafter SELLING AMERICA'S KIDS].

See Sharon Bernstein, Frito­Lay, Fox Draw Up Cartoon Plans, L.A. TIMES, Dec. 25, 1991, at F15 (discussing the controversy surrounding Fox Broadcasting's plan to air a weekly children's cartoon show based on a cartoon character created by a potato chip manufacturer to promote its snacks); Stuart Elliot, Commercial Cartoon Furor Grows, N.Y. TIMES, Mar. 5, 1992, at D1 (discussing the debate over proposed children's television programs that feature animated characters identified with products). Several public interest, nonprofit organizations, including Action for Children's Television and the Center for the Study of Commercialism, complained to the Federal Communications Commission about these practices. Id.; Groups Ask Action on Product Placements, L.A. TIMES, May 31, 1991, at F16.

Sharon Bernstein, Advocates for Children's TV Air Their Beef with McDonald's, L.A. TIMES, Dec. 20, 1991, at F6 ("There's only one thing you think of when you see Ronald McDonald and it's not running to the library for books.").

Infomercials present a thirty­minute to three­hour commercial as a talk show. See Stephanie Brush, Heeeeere's The Commercial!, WASH. POST, Feb. 11, 1990, at F1 (describing TV commercials that simulate the look of TV talk shows); Stuart Elliot, New Show Spurs Debate on Old Issue, N.Y. TIMES, Jan. 21, 1992, at C15 ("Besides carrying conventional commercials, 12 minutes during each hour, as many as four of the seven segments in each show would feature guests who lace their interviews with pitches for merchandise .... Toll­free telephone numbers for ordering would flash onto the screen."); Eugene Secunda, Infomercials on Network?, ADVERTISING AGE, Nov. 30, 1992, at 20 (discussing the advent of infomercials on network television); Jennifer Zickerman, Infomercials on the Rise, ADBUSTERS, Winter 1993, at 28 (noting that the deregulation of television advertising has resulted in purchases of network television time by companies who produce and market program­length commercials).

Documercials are paid TV program "documentaries" without explicit invitations to buy products. See Paul Farhi, Hard News or Soft Sell?, WASH. POST, Feb. 23, 1992, at H1, H14 (arguing that documercials may deceive viewers more because they do not explicitly urge consumers to make purchases).

A video news release is an approximately 90 second electronic version of the PR profession's basic print tool, the press release. It's designed to promote the interests of its sponsor more subtly than TV commercials, which are required to clearly identify the advertiser. Its targets are the 700 local television station news shows currently produced in the nearly 300 U.S. media centers.

Eugene Secunda, Video News Releases: The Hidden Persuaders Revisited? 1 (Oct. 8, 1989) (unpublished paper delivered at the Annual Media Ecology Conference in Saugerties, N.Y., on file with the Texas Law Review); see also David Lieberman, Fake News, TV GUIDE, Feb. 22, 1992, at 9­10 (noting that video news releases, prepared by public relations firms, frequently appear in nightly network newscasts without attribution); Joanne Lipman, 'News' Videos That Pitch Drugs Provoke Outcry for Regulations, WALL ST. J., Feb. 8, 1990, at B6 (noting that some 2000 to 2500 releases are offered annually to TV stations nationwide).

Movie producers reap sums ranging from $10,000 to $1,000,000 to include commercial products in their films. SELLING AMERICA'S KIDS, supra note 118, at 18. The movie Total Recall (Tri­Star 1991) projected some 55 "product placements" for 28 brands. Groups Ask Action on Product Placements, supra note 116, at F16. Bull Durham (Orion 1988) flashed an average of one brand name every two minutes. Michael F. Jacobson, The Bull in 'Bull Durham,' N.Y. TIMES, Dec. 23, 1988, at A39 (noting the product placements in Bull Durham and arguing that this is "a uniquely insidious and deceitful form of advertising"). Many nonprofit organizations have protested this practice. Groups Ask Action on Product Placements, supra note 116, at F16 (reporting that several public interest, nonprofit organizations, including Media Access Project, Consumer Federation of America, and the Center for the Study of Commercialism, complained of this practice to the Federal Trade Commission); Ric Kahn, The Art of the Plug, BOSTON PHOENIX, July 12, 1991, § 1, at 20 (describing a proposal of the Center for the Study of Commercialism that moviemakers be required to disclose at the start of a film that product placements are paid advertisements); see also Steven L. Snyder, Note, Movies and Product Placement: Is Hollywood Turning Films into Commercial Speech?, 1992 U. ILL. L. REV. 301 (arguing that product placements in movies should not disqualify them from First Amendment protection).

Advertorials are the print equivalent of infomercials: advertiser­paid stories designed to mimic news stories or editorials. See Scott Donaton, Advertorials 'Are Like a Drug,' ADVERTISING AGE, Mar. 9, 1992, at S16. Advertorials are even mentioned in the tables of contents of some magazines, and other magazines publish "advertiser indexes" to help readers find ads. See Maureen Goldstein, Editorial for Sale, Cheap, INSIDE MEDIA, Dec. 9, 1991 (no page number in original).

Gloria Steinem, the founding editor of Ms. magazine, describes the phenomenon of "complimentary copy" in these terms:

Food advertisers have always demanded that women's magazines publish recipes and articles on entertaining (preferably ones that name their products) in return for their ads; clothing advertisers expect to be surrounded by fashion spreads (especially ones that credit their designers); and shampoo, fragrance, and beauty products in general usually insist on positive editorial coverage of beauty subjects, plus photo credits besides. That's why women's magazines look the way they do.

Gloria Steinem, Sex, Lies & Advertising, Ms., July­Aug. 1990, at 18, 19; see Ronald K.L. Collins, Dictating Content: How Advertising Pressure Can Corrupt a Free Press 32­49 (1992) (report published by the Center for the Study of Commercialism, Washington, D.C.) (documenting instances of advertising pressure on editorial content); Gloria Cooper, Darts and Laurels, COLUM. JOURNALISM REV., Mar.­Apr. 1992, at 17 (detailing a Southern California newspaper's "reporting" of the opening of a major department store that prominently featured eleven pieces and twenty­two photos on the company's policies and prices, "loudly accessorized with info boxes, time lines, and a floor­by­floor guide to its restaurants, beauty services, and ready­to­wear departments­some 400 column­inches in all. In the September 5 edition, the coverage was complemented by twenty full pages, including five ... in color," of the store's ads).

Farhi, supra note 122, at H1.

Id.

See R. Craig Endicott, Where Those Ad Dollars Go, ADVERTISING AGE, Aug. 20, 1987, at 134 (describing Procter & Gamble as "the nation's biggest network TV advertiser, with expenditures of $456.3 million").

Steinem, supra note 126, at 26 (the language quoted in the text is from Ms. Steinem's account). Procter & Gamble once maintained an equally rigid editorial policy for the electronic media in which it advertised:

There will be no material that may give offense either directly or by inference to any commercial organization of any sort. There will be no material on any of our programs which could in any way further the concept of business as cold, ruthless and lacking all sentimental or spiritual motivation.

MICHAEL PARENTI, MAKE­BELIEVE MEDIA 186 (1992).

Howard Kurtz, Media Notes: Treading Lightly on Advertisers, WASH. POST, July 10, 1991, at F1, F10 (quoting Starr).

For additional examples beyond those mentioned in this Essay, see generally Collins, supra note 126; Bruce Horovitz, Advertisers Influence Media More, Report Says, L.A. TIMES, Mar. 12, 1992, at D2 (discussing examples of news organizations revising or killing stories for fear of upsetting advertisers); Karen Riley, Media Back Down From Advertisers, Critics Say, WASH. TIMES, Mar. 12, 1992, at C1 (providing examples of economic censorship and recommendations for curbing abuse); G. Pascal Zachery, Many Journalists See a Growing Reluctance to Criticize Advertisers, WALL ST. J., Feb. 6, 1992, at A1 (describing editors' responses to advertiser complaints).

See Andee Beck, A Bigger Chill­The Terrifying Trend to Clamp Down on Advertiser­Sensitive Reporting in Television, IRE J., Fall 1990, at 17 (reporting that a consumer correspondent, after investigating prescription drug prices, was instructed by station management to "withhold information that might antagonize advertisers"). For a criticism of government interference in drug advertising, see BAD PRESCRIPTION FOR THE FIRST AMENDMENT: FDA CENSORSHIP OF DRUG ADVERTISING AND PROMOTION (Richard T. Kaplar ed., 1993) (arguing against federal regulatory agency restrictions on prescription drug advertising in order to promote public safety and health interests).

See Kenneth Warner, Cigarette Advertising and Magazine Coverage of the Hazards of Smoking­A Statistical Analysis, NEW ENG. J. MED., Jan. 30, 1992, at 305, 307; Deirdre Carmody, Coverage of Smoking Linked to Tobacco Ads, N.Y. TIMES, Jan. 30, 1992, at D22; David Owen, A Final Word on The New Republic and Those Cigarette Ads, WASH. MONTHLY, June 1985, at 51; Eleanore Randolph, Media Notes­Peretz: Burned Up, WASH. POST, Apr. 2, 1985, at B2; James Warren, Is Media a Smokescreen for Tobacco Industry Ills?, CHI. TRIB., Mar. 20, 1985, § 5, at 4.

See GEORGE A. HACKER, RONALD COLLINS & MICHAEL JACOBSEN, CENTER FOR SCI. IN THE PUB. INTEREST, MARKETING BOOZE TO BLACKS 17 (1987) (declaring that the African­American media is reluctant to tackle alcohol and tobacco problems because magazines and radio stations catering to black audiences rely on these industry ads for survival).

See Adam Platt, Hit and Run: How the Automobile Industry Intimidates the News Media & Smashes Good Consumer and Safety Reporting, TWIN CITIES READER, Feb. 20­26, 1991, at 8 (giving examples of television investigative reporters who have lost their jobs, have had dealers' names edited out of stories, and have been reassigned to other departments because they reported material harmful to local car dealerships); Herb Weisbaum, Advertisers Fight Back, IRE J., Fall 1990, at 18 (complaining that consumer reporters' efforts are often chilled by pressure from advertisers and explaining the lack of investigative reports as a result of the auto industry on the importance of auto ads to TV stations' revenues).

See Elizabeth Lesly, Realtors and Builders Demand Happy News ... and Often Get It, WASH. JOURNALISM REV., Nov. 1991, at 22 (discussing the "gutless nature" of some mainstream real estate coverage).

See Steinem, supra note 126, at 26­27 (noting that some women's magazines go so far as to mention cosmetic products' names in stories about successful women).

See Collins, supra note 126, at 53 (reporting that a national fast­food restaurant removed its advertising from a local station for three months after a consumer advocate was allowed to criticize the company's product).

See, e.g., Nick Coleman, Stations Give In to Big Advertiser, ST. PAUL PIONEER PRESS, Dec. 5, 1991, at D1 (describing how members of a Sioux Indian tribe were denied any opportunity to place a paid anti­nuclear­waste spot on three local television stations that regularly run commercials of a power company that plans to build a nuclear waste dump near the tribe's reservation); Ronald K.L. Collins, Truth in Advertising: The Censors' Control, BALTIMORE SUN, May 21, 1990, at A5 (noting that television network affiliates in six cities rejected a paid political commercial urging boycott of a coffee manufacturer). But cf. John Carroll, All the News That's Fit to Advertise, BOSTON SUNDAY GLOBE, Jan. 31, 1993, at 65, 66 ("What seems to be developing is a two­tiered system of journalism: small­town papers, fashion magazines and television programs that feel free to play footsie with their advertisers, and 'serious' news sources that remain solvent enough to draw the line between advertising and editorial."). Joann Lublin, TV Networks Gingerly Lift Prohibition on 'Issue Ads,' WALL ST. J., Oct. 15, 1990, at B1 (reporting that television networks claim to accept issue advertising).

The general advertising categories include network and cable television, weekly and daily newspapers, magazines, radio, outdoor billboards, transit posters, industrial and trade publications, direct mail, Yellow Pages, handbills and leaflets, window displays, logos and brand names shown on products, home videos, commercial tie­ins, placement ads situated in movies and television shows, and various forms of sales promotional techniques like rebates and coupons. For an excellent discussion of the opportunities and advantages associated with the spectrum of advertising media, see BOGART, supra note 40, at 121­50.

See generally Collins, supra note 126, at 13 (noting newspaper, magazine, and network drops in advertising revenues).

See RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 437 (Stuart B. Flexner ed., 2d ed. 1987).

N.Y. TIMES, Apr. 28, 1991, at A53 (advertisement).

HENRY, supra note 21, at 22.

EWEN, supra note 75, at 245 (emphasis omitted).

See generally DAVID E. SHI, THE SIMPLE LIFE: PLAIN LIVING AND HIGH THINKING IN AMERICAN CULTURE 249­76 (1985) (detailing cycles of consumptive behavior from the Great Depression of the 1930s to the Reagan era); Stuart Elliot, Themes of 80's Excesses Yield to the Basics of the 90's, N.Y. TIMES, Oct. 21, 1991, at D10 (noting that advertisers "reshape attitudes" during recessionary cycles to emphasize "more emotional, human and personal" dimensions of consumption rather than just "the acquisition of material things").

Stuart Elliot, Strategies for Selling More When Shoppers Want Less, N.Y. TIMES, Jan. 16, 1992, at D18 (quoting Carol Farmer, president of a private consulting firm in Boca Raton, Florida); see also Stuart Elliot, Helping Marketers Adjust to Mood Swings of Consumers, N.Y. TIMES, Nov. 10, 1992, at D21 (analyzing the efforts of advertisers to anticipate the "bungee­like" mood shifts of consumers that are "an overreaction to short­term changes in statistical measures covering important areas like the economy, the environment, health care and crime").

See Alan T. Durning, ... And Too Many Shoppers: What Malls and Materialism Are Doing to the Planet, WASH. POST, Aug. 23, 1992, at C3 ("Consumerism, no matter how tastefully trimmed with green, is a recipe for ecological decline.").

EWEN, supra note 75, at 241.

LEISS ET AL., supra note 12, at 1.

EWEN, supra note 75, at 32.

BAUDRILLARD, supra note 69, at 53.

Id. at 48 (emphasis in original).

LEISS ET AL., supra note 12, at 389.

Robert B. Westbrook, Politics as Consumption: Managing the Modern American Election, in THE CULTURE OF CONSUMPTION: CRITICAL ESSAYS IN AMERICAN HISTORY, 1880­1980, supra note 27, at 143, 155.

See John A. Farrell, The Electronic Election, BOSTON GLOBE, Nov. 13, 1988, available in LEXIS, Nexis Library, BGLOBE File (discussing the use of imagery in the Reagan and Bush campaigns).

See Michael Wines, Bush's Campaign Tries Madison Ave., N.Y. TIMES, May 27, 1992, at A18 ("President Bush's re­election campaign is handing control of its $40 million­plus advertising program to two Madison Avenue executives with scant political experience.").

See Dan Balz, New Clinton Ad Team Combines Political, Commercial Veterans, WASH. POST, July 4, 1992, at A8 ("Clinton has tapped the firm of Deutsch Inc., a New York company best known for its ads in behalf of IKEA, the Swedish home products retailer.").

See Steven W. Colford, Perot Talks to Riney About Campaign Ads, ADVERTISING AGE, June 22, 1992, at 1 (reporting speculation as to advertising executive Hal Riney's involvement in the Perot campaign). In fact, the New York Times went so far as to ask advertising executives how they would have structured Ross Perot's independent presidential campaign. If You Won the Perot Account ...., N.Y. TIMES, May 4, 1992, at A17. The editors of Advertising Age presented a similar question to marketing experts regarding their views on the Clinton and Bush campaigns. See Steven W. Colford, Bill vs. Bush: How Experts Would Position Each for Victory in Fall, ADVERTISING AGE, May 18, 1992, at S1 (Special Report).

Balz, supra note 159, at 8 (quoting Mandy Grunewald, media consultant to the 1992 Clinton presidential campaign).

Westbrook, supra note 156, at 145.

Not surprisingly, the marriage of politics to marketing has produced something of a reversal in influence: drawing inspiration from Bill Clinton's successful campaign for change, advertisers are associating consumer products with the concept of change. See, e.g., Stuart Elliot, Turning the Issue Around: How Politics Has an Effect, N.Y. TIMES, Nov. 16, 1992, at D7 (reporting that marketers are studying political campaign techniques for building coalitions, consensus, and constituencies); Eben Shapiro, In Light of Election Results, Companies Stress "Change," N.Y. TIMES, Nov. 9, 1992, at D7 (quoting Ron Berger, a partner in an agency that has employed the "time for change" theme in its advertisements: "Any good agency will always look to magnify an idea by capturing a larger, societal trend").

"Where's the beef?" was a popular advertising slogan for a major fast­ food hamburger chain. See Lee Comegys, Catch, Catch Can, Oct. 30, 1984, available in LEXIS, Nexis Library, WIRES File; Martin Schram, Media Feed Floridians Debate in Morsels, WASH. POST, Mar. 13, 1984, at A8. On a related front, another prominent hamburger chain ran an advertisement "supporting traditional American values on television, especially the importance of the family." WASH. POST, Nov. 4, 1990, at A27 (advertisement).

Associated Press v. United States, 326 U.S. 1, 20 (1945) (reasoning that application of the Sherman Act to "a combination to restrain trade in news and views" would enhance, rather than constrict, press freedoms).

To some extent, what is written here about the classifieds could hold true for information­based advertising in trade and industry journals.

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976); see supra text accompanying note 1.

WASH. POST, July 13, 1991, at D32 (advertisement listed under "Trucks" classification; correct phone number omitted). Incredibly, such important forms of commercial speech have not yet found their way to computerized legal database services.

See BOGART, supra note 40, at 107 ("[Advertising's] importance lies not in having elicited a specific purchase response to a specific ad. The real significance of advertising is its total cumulative weight as part of the culture­in the way in which it contributes to the popular lore of ideas and attitudes toward consumer products."); SCHUDSON, supra note 20, at 238 (arguing that advertising fosters "a consumer way of life").

JANE CARSON, PATRICK HENRY: PROPHET OF THE REVOLUTION 46 (Edward M. Riley ed., 1979).

Bigelow v. Virginia, 421 U.S. 809, 812 (1975) (holding that a Virginia statute making it a misdemeanor, by the sale or circulation of any publication, to encourage or prompt the procuring of an abortion could not be applied to the newspaper owner's publication of the advertisement without infringing upon the owner's First Amendment rights).

MICHAEL G. GARTNER, ADVERTISING AND THE FIRST AMENDMENT 22 (1989).

Martin H. Redish, The First Amendment in the Marketplace: Commercial Speech and the Values of Free Expression, 39 GEO. WASH. L. REV. 429, 443­44 (1971).

Bates v. State Bar, 433 U.S. 350, 382 (1977) (holding that lawyers may constitutionally advertise their prices for routine legal services).

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563 (1980).

Daniel H. Lowenstein, "Too Much Puff": Persuasion, Paternalism and Commercial Speech, 56 U. CIN. L. REV. 1205, 1229 (1988) (citing Bates, 433 U.S. 350 (1977) and Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)) (footnote omitted). None of Lowenstein's characterizations has been affected by the Court's more recent commercial speech decisions.

Id. at 1229 (citing Posadas de P.R. Assocs. v. Tourism Co., 478 U.S. 328 (1986); Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981); Friedman v. Rogers, 440 U.S. 1 (1979); and Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)).

See, e.g., Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 647­49 (1985) (holding unconstitutional the reprimand of an attorney for soliciting business with truthful and nondeceptive advertisement); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 68 (1983) (protecting birth control advertisements in fliers and informational pamphlets mailed to the public); In re R.M.J., 455 U.S. 191, 206­07 (1982) (allowing an attorney to advertise that he was admitted to practice before the U.S. Supreme Court); Bates, 433 U.S. at 383 (holding that a legal clinic's newspaper advertisement listing services and fees could not be prohibited); Carey v. Population Servs. Int'l, 431 U.S. 678, 682 (1977) (prohibiting the suppression of a birth control advertisement that was not limited to adults); Linmark Assocs. v. Willingboro, 431 U.S. 85, 86 (1977) (extending First Amendment protection to "for sale" signs posted in residential yards); Virginia State Bd. of Pharmacy, 425 U.S. at 773 (protecting prescription drug advertising); Bigelow v. Virginia, 421 U.S. 809, 825 (1975) (holding protected an abortion clinic's newspaper advertisement). In Discovery Network, Inc. v. City of Cincinnati, 946 F.2d 464 (6th Cir. 1991), the United States Court of Appeals for the Sixth Circuit invalidated on First Amendment grounds a local ordinance that banned the distribution of advertising magazines through newsracks on public property and yet permitted newspapers to use the racks. The U.S. Supreme Court has agreed to review the case. City of Cincinnati v. Discovery Network, Inc., 112 S. Ct. 1290 (1992) (granting certiorari). Given the "classified" character of the advertisements in question, the Court could well uphold the First Amendment claim, remaining consistent with its earlier rulings.

The Court, however, has not hesitated to curtail First Amendment protection when the advertisement in question may not fit the classified communication mold. See, e.g., Posadas, 478 U.S. at 348 (upholding a Puerto Rico statute restricting casino gambling advertisements aimed at residents of Puerto Rico); Metromedia, 453 U.S. at 512 (allowing certain restrictions on outdoor commercial billboards). The kinds of advertising represented in both of these cases tend significantly toward the image, personality, and lifestyle formats typical of modern mass advertising.

See ERIC BARENDT, FREEDOM OF SPEECH 57­58 (1985) (discussing the approach, recommended by the British Monopolies Commission, of removing any limits on informational advertisements but acknowledging that "there might in some circumstances be good reasons for inhibiting advertisements designed to create custom[s]"); id. at 60 (noting that European Convention case law distinguishes "between promotional advertising and commercial speech providing information").

See Lowenstein, supra note 176, at 1226­30 ("[T]he Court's frequent statements that the protection of commercial speech is based on its informational value might be taken as marking a limit to the constitutional protection.").

NEUBORNE, supra note 9, at 22.

See, e.g., ROLLING STONE, Oct. 20, 1988, at 56 (advertisement).

See supra text accompanying note 168.

See, e.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563­64 (1980) (noting that the government has the power to ban forms of communication likely to deceive the public); Redish, supra note 173, at 467 (discussing the propriety of First Amendment protection for advertisements addressing the health effects of smoking, assuming the ads are not deceptive or misleading).

Alex Kozinski & Stuart Banner, Who's Afraid of Commercial Speech?, 76 VA. L. REV. 627 (1990).

Id. at 639 (emphasis added).

See id. at 640­48. Kozinski and Banner also offer the following syllogism for justifying First Amendment protection of imagistic advertising: (1) In differentiating commercial from political, artistic, or scientific speech, one cannot inquire into the intent of the speaker according to Supreme Court dictates; (2) lifestyle advertising can be classified as speech proposing a commercial transaction only by inquiring into the intent of the advertiser; (3) therefore, lifestyle advertising cannot categorically be labeled commercial rather than political, artistic, or scientific speech. See id. at 639­40. Succinctly put, this argument depends on a highly formalistic interpretation of the Court's criteria for proposing a commercial transaction. Such an approach belies the obvious­consumers are likely to recognize as commercial a lifestyle image ad that eschews all express terms inviting them to buy. And pragmatically, since advertising costs are tax deductible, Treas. Reg. § 1.162­ 14 (as amended in 1969), an advertiser would already have told the government in its federal tax return that it engaged in commercial speech. In other words, the government need not inquire as to the advertiser's intent since it already knows.

See EMERSON, supra note 11, at 6.

Santa Clara County v. Southern Pac. R.R., 118 U.S. 394 (1886).

Mark Tushnet, Corporations and Free Speech, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 256 (David Kairys ed., 1982).

HOWARD ZINN, A PEOPLE'S HISTORY OF THE UNITED STATES 255 (1980), quoted in HERBERT I. SCHILLER, CULTURE, INC.: THE CORPORATE TAKEOVER OF PUBLIC EXPRESSION 47 (1989).

See, e.g., Malcolm P. Sharp, Foreword to MEIKLEJOHN, supra note 11, at xv­xvi (quoting Meiklejohn as saying that the "unregulated self­seeking of the profit­makers is much more dangerous in its effect upon the morality and intelligence of the citizen" than is regulation for the common good); Lillian R. BeVier, The First Amendment and Political Speech: An Inquiry into the Substance and Limits of Principle, 30 STAN. L. REV. 299, 353 (1978) (arguing that commercial advertising is so far removed from the context of political debate that public interest in its messages is irrelevant to First Amendment values); Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 26­28 (1971) (maintaining that First Amendment protection "must be cut off when it reaches the outer limits of political speech").

See, e.g., SCHILLER, supra note 191, at 51­56 (contending that constitutional corporate speech privileges have allowed the corporate sector to dominate the media channels that shape the national economic activity and the national consciousness); Thomas I. Emerson, First Amendment Doctrine and the Burger Court, 68 CAL. L. REV. 422, 460­61 (1980) (arguing that the Burger Court's reversal of the commercial speech doctrine, which allowed governmental regulation of commercial speech by treating it differently from other expression, was misguided); Tushnet, supra note 190, at 260 (arguing that it is improper to treat corporations as persons in the context of constitutional free speech rights).

C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 196 (1989).

BAUDRILLARD, supra note 69, at 29.

WILLIAMSON, supra note 83, at 179.

BAKER, supra note 194, at 203 (emphasis added).

BAUDRILLARD, supra note 69, at 53.

BAKER, supra note 194, at 210; see infra note 234 (explaining Baker's own view of his argument).

See BAKER, supra note 194, at 218­20. Interestingly, Edwin Baker would deny constitutional status to classified communication by unincorporated individuals and associations as well. See id. at 196 ("[P]rofit­motivated, commercial speech should be denied protection." (footnote omitted)); id. at 208 ("[T]his value, the desire to make a profit, is qualitatively different from other value commitments.... Making a sale in order to make a profit has only instrumental value." (footnote omitted)); id. at 340 n.29 ("[Profit­ motivation] refers to the purposes or aims analytically attributable to the person or corporation....").

See GQ, July 1991, at 54­55 (advertisement with a recipe for the drink "Sex on the Beach").

ROLLING STONE, Aug. 8, 1991, at 53, 57 (advertisements); see also Martha Moore, Jeans Stretching to Fit All in Flat Market, USA TODAY, Aug. 16, 1991, at B8 (describing the $12 million jeans advertising campaign using stylish drawings).

GLAMOUR, Sept. 1991, at 101­04 (advertisement).

LEISS ET AL., supra note 12, at 43.

MARTIN, supra note 2, at 9.

O'TOOLE, supra note 62, at 20.

WHETMORE, supra note 59, at 279.

D.P. SIMPSON, CASSELL'S NEW LATIN DICTIONARY 23 (5th ed. 1968) (defining advertere literally as "of the senses, thoughts, etc., to direct towards an object" (emphasis omitted)).

JOHN C. DRIVER & GORDON R. FOXALL, ADVERTISING POLICY AND PRACTICE 87 (1984); see also DYER, supra note 13, at 109­10 (discussing studies which conclude that "ads do not act as objective guides to the audience" and that persuasion has a tendency to block rational examination).

See generally Alan Howard, The Constitutionality of Deceptive Speech Regulations: Replacing the Commercial Speech Doctrine with a Tort­Based Relational Framework, 41 CASE W. RES. L. REV. 1093 (1991) (advocating a relational framework that examines the regulatory impact on protected speech, the nature of the speech affected, and the justification for protecting a listener's reliance on the regulated speech).

Saturday Night Live (NBC television broadcast, July 27, 1991) (commercial).

ROLLING STONE, Aug. 8, 1991, at 48 (advertisement).

ROLLING STONE, Sept. 5, 1991, inside cover & 1 (advertisement).

GQ, July 1991, at 24 (advertisement).

HENRY, supra note 21, at 49­50.

WILLIAMSON, supra note 83, at 175.

See, e.g., Steven Shiffrin, Listeners' Rights, in THE FIRST AMENDMENT 83 (Leonard W. Levy et al. eds., 1990) (asserting that the classic justification for freedom of speech emphasizes "not that speakers have a right to say what they want to say, but that speakers must be free to speak so that the society can find truth").

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756­57 (1976).

See supra text accompanying notes 153­71. For a thoughtful proposal for a First Amendment theory explicitly recognizing the listeners' right to know, see Meir Dan­Cohen, Freedoms of Collective Speech: A Theory of Protected Communications by Organizations, Communities, and the State, 79 CAL. L. REV. 1229, 1244­48 (1991) (arguing that a corporation's right to free speech is derivative from the listener's individual passive right to hear).

Branzburg v. Hayes, 408 U.S. 665, 721 (1972) (Douglas, J., dissenting).

For an alternative conception of a "free press" subsidized by public tax monies, see C. Edwin Baker, Advertising and a Democratic Press, 140 U. PA. L. REV. 2097, 2180­88 (1992) (proposing a plan that taxes advertising revenue and returns the tax as circulation revenue, thereby decreasing the media's dependence on advertising).

A staunch defender of First Amendment press liberties, Professor Lucas A. Powe, Jr., understandably dismisses the value of the public's right to know:

The right to know is not a right; it's a slogan. Furthermore, it is a dangerous slogan, because it instantly invites inquiry into the actual performance of a newspaper. Instead of giving the press more rights, it runs the risk of denying the press its most sacred possession, its autonomy.

LUCAS A. POWE, JR., THE FOURTH ESTATE AND THE CONSTITUTION: FREEDOM OF THE PRESS IN AMERICA 257 (1991). Powe concludes:

[A]part from Justice Douglas, and with the exception of some overblown dicta from other justices, the Court never saw the right­to­know model as a viable First Amendment doctrine.... In rejecting that theory, however, it never endangered the essential autonomy of a free press.

Id. at 259.

MAX LERNER, AMERICA AS A CIVILIZATION 8 (1957) (quoting Calvin Coolidge).

See, e.g., Barry Brown, Meditate on This: New Park Would Have Yogi Theme, ADVERTISING AGE, Mar. 30, 1992, at 1 (reporting on plans for the "Maharishi­Veda Land" theme park); Veda Land: Theme Park for Ontario, N.Y. TIMES, Mar. 22, 1992, at A31 (stating that magician Doug Henning and spiritual adviser Maharishi Mahesh Yogi plan to create a theme park on 1400 acres near Niagara Falls, Ontario, "combining recreation with spiritual enlightenment").

See Walter Goodman, Pull the Plug on PBS?, N.Y. TIMES, Mar. 22, 1992, at H33 (noting that many public television stations are selling commercial spots, euphemistically called "enhanced underwriting," and are broadcasting documentaries on subject matters related to the products sold by corporate promoters who pay for the production of the documentaries).

See, e.g., BAKER, supra note 194, at 203­04, 208 (discussing the regulation of commercial speech as a means of encouraging the development of personal values and morals through self­determination rather than through advertising).

NEUBORNE, supra note 9, at 13 (emphasis added).

For example, in arguing that much commercial expression cannot further the values most intrinsic to selfhood, Baker subscribes to the proposition that "neither happiness, nor a sense of freedom, nor any other important human goal closely correlates with a maximum satisfaction of market­stimulated desires." BAKER, supra note 194, at 203. Even granting Baker's supporting claim that "moderate and radical critics have continually asserted this point," id. at 344 n.66, a claim for which scant authority is offered, the claim does not rest on any evidence that the popular will endorses it.

SATURDAY EVENING POST, Mar. 18, 1944, at 65, quoted in Richard W. Fox & T.J. Jackson Lears, Introduction to THE CULTURE OF CONSUMPTION: CRITICAL ESSAYS IN AMERICAN HISTORY, 1880­1980, supra note 27, at ix.

Jacob D. Fuchsberg, Commercial Speech: Where It's At, 46 BROOK. L. REV. 389, 393 (1980).

See Howard, supra note 210, at 1095, 1118 n.84, 1135, 1137­56 (discussing the "murky and shifting definition of commercial speech," especially as it relates to advertisements that increase a company's profits but also address matters of public concern).

GLAMOUR, Sept. 1991, at 4­5 (advertisement).

Admittedly, government has moved incrementally to restrict advertising of products and services that pose the most egregious threats to public health and safety. For example, with industry approval, Congress outlawed cigarette advertising on radio and television in 1969. See generally Federal Cigarette Labeling and Advertising Act of 1969, 15 U.S.C. § 1335 (1988) (effective Jan. 1, 1971). Yet, national lawmakers have not banned some $2 billion worth of tobacco advertising and promotions in other media. LARRY C. WHITE, MERCHANTS OF DEATH: THE AMERICAN TOBACCO INDUSTRY 22 (1988) (stating that cigarettes are the most advertised product in the United States).

BAKER, supra note 194, at 210. Ed Baker, our friend and colleague, informed us that his reference to commercial speech in this passage alluded to the commercial speech doctrine as announced by the Supreme Court. After re­ examining the passage and its context, we are at a loss to understand this gloss on the text. In any event, our point is made for the progressive critique generally, notwithstanding Baker's characterization of it.

In his earlier work, Edwin Baker claimed to be arguing "only that commercial speech and other market practices should be subject to democratic control, not that this democracy should choose to regulate." Id. Thus, he found no need to "take a position on" political action. Id. Recently, Baker appears less deferential and more directive in promoting political action: "[T]argeted policies that reduce objectionable effects of advertising may provide net social benefits even if these policies also marginally reduce its positive contributions." Baker, supra note 221, at 2178. Among his specific proposals are laws imposing taxes on advertisers and prohibiting overt forms of advertiser censorship. Id. at 2180, 2200­01.

Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).

LIVA BAKER, THE JUSTICE FROM BEACON HILL: THE LIFE AND TIMES OF OLIVER WENDELL HOLMES 415 (1991).

For a defense of this proposition, see Ronald Coase, Advertising and Free Speech, 6 J. LEG. STUD. 1, 9 (1977) ("Advertising ... informs the consumer ... through inducing the consumer to try the product and thus informing him the most direct way.").

HERBERT LOTTMAN, ALBERT CAMUS 260 (1979) (describing the Conseil as a resistance group that fought the Gestapo during the French occupation).