Smolla's Puzzling Charge of Elitism

In addition to his apparent claim that we are the harbingers of First Amendment commercial­speech regulation, Smolla (and the Kozinski­Banner duo ³⁸) implicitly cast us as elitist and undemocratic­those Allan Bloom ³⁹ types. Ostensibly, Smolla situates us among the intellectuals who claim "a mandate to push government to regulate mass culture in the service of elevating it ...." ⁴⁰ After all, we are the ones "presuming to regulate mass advertising in order to defend high culture or to elevate public discourse ...." ⁴¹

Once again, we find such claims puzzling. Ironically, we are the very ones who point out that "the progressive view ... is likely to be seen as manipulative, elitist, and undemocratic." ⁴² (In an earlier work, we argued that intrusive governmental regulation of commercial television "would be viewed as the segue to an aristocratic (and, therefore, un­American) displacement of egalitarian and mass tastes." ⁴³) Furthermore, we baldly assert that "America's self­identity is bound up with commercialism" ⁴⁴ and that "it is impossible to disentangle commerce from communication and preserve America as we know it." ⁴⁵ Such concessions, of course, ought not to imply that we go to the other extreme and embrace the excesses of contemporary commercial communication. Our express purpose, it must be remembered, is more descriptive than normative.

More importantly, Smolla challenges our depiction of the culture of commercial communication. He contends that "the threats to public discourse posed by contemporary mass advertising are largely exaggerated." ⁴⁶ Although our portrait of the mass advertising culture is "an arresting caricature," ⁴⁷ Smolla finds the notion that advertising's messages "really do influence us, indeed actually transform us, in deep and significant ways" ⁴⁸ to be "ingenious but not convincing." ⁴⁹ He explains that advertisements "rarely penetrate or connect" ⁵⁰ because "[w]e often do not stop to even read or watch the ads," ⁵¹ and when we do, "certainly no one must pay attention." ⁵²

To pursue the inquiry, Smolla asked colleagues and friends: "Does advertising cause them to think of themselves differently? To make irrational purchases? To speak and write in ways that lose any grounding in reality or logic?" ⁵³ The conclusion of his "nonscientific polling": "Most people ... profess to have relatively strong advertising immune systems and do not feel that they are being transformed in any alarming sense." ⁵⁴ Furthermore, in the style of a personal confession, he admits to fantasizing now and then that he might "be like Mike" ⁵⁵ when wearing his basketball shoes, but asks us: "What harm to the consumer does this fantasizing do? Who is hurt? Who is 'created' or 'reconstituted' or 'debased' or 'commodified?' ... So what if I enjoy a little dreaming now and then, even when prompted by my athletic shoes?" ⁵⁶