Commercial speech, Political Speech and the First Amendment

Arguably the most important amendment in the U.S. Constitution is the First, which grants protections involving freedom of speech, freedom of the press and freedom of religion, among others. However, the First Amendment talks in broad terms and the freedoms protected aren’t absolute. The Supreme Court has ruled exemptions from these freedoms in past cases.

Image via BecomingMinimalist

Two types of speech that have been scrutinized in Supreme Court cases are commercial speech and political speech. These forms of speech are handled very differently in their protections and restrictions. 

The Supreme Court defines commercial speech as speech that "proposes a commercial transaction." Advertising is considered to be commercial speech, since it promotes the selling of goods or services with the intent of making a profit. 

According to the Central Hudson Test, the First Amendment only protects commercial speech as long as the advertising is not false, misleading or illegal. Therefore, federal laws and regulating government bodies such as the Federal Trade Commission (FTC) exist to protect consumers from advertising that is false or deceptive. 

Earlier this year, Nissan settled a deceptive advertising case with the FTC after Nissan ran an ad in 2011 for its Frontier pickup truck. The ad showed the truck driving up a steep dune to push a buggy that was stuck in the sand. The FTC ruled that the advertiser misrepresented what the product was capable of doing. According to the Institute for Advertising Ethics, advertisers must exercise truth and transparency in their messages. 

If a consumer tried testing the scenario in Nissan’s ad and it resulted in injury or death, Nissan would be held liable. Companies must abide by “truth-in-advertising” laws and the FTC holds that it’s not right to sell a product based on deceptive tactics. This principle leads to the topic of political speech, which varies drastically in protections and regulations compared to commercial speech.

Political speech is considered to be any message that is intended to build up public interest or support for an issue, cause, position, or candidate. Ironically, while commercial advertising must not be false or misleading this does not apply to political advertising, which is rarely limited by the government and is granted full protection under the First Amendment. The Supreme Court has “suggested little or no ban on political speech, even if false, would be found constitutional.” As a result, some states have acted on their own by passing laws that ban false campaign materials.

Commercial advertising is used with the intention of providing information to consumers, which protects them by contributing to informed decision-making. In this sense, there is a lack of consumer protection involving the exposure of political advertising messages. Politicians can say almost anything, including untrue things during the course of a campaign. This is because politicians are “public figures” and targets of false ads rarely sue due to libel laws that make it practically impossible for candidates to collect damages, even if they could win. Consequently, heavily distorted information is free to flow from political campaigns, leaving voters to their own devices when determining what information in political messages is true or false. 

The problem is that if commercial advertising is to be regulated in order to allow consumers to make informed decisions, shouldn’t political advertising be regulated as well? Political messages are tactical and selective in their wording as they use actors, truncate quotes and video clips, use statements out of context, make unsubstantiated claims, and play on emotions without providing solutions to real issues. 

According to the FTC, it is not permissible to use puffery or deceptive practices in order for companies to sell commercial goods, yet the Supreme Court holds that it is permissible for political advertisers to use deceptive tactics and exaggerated claims when selling political “goods” in the form of ideas. This creates problems with the country’s democratic electoral process by creating misled, uninformed or apathetic voters. 

Thanks to the loopholes and protections under the First Amendment, politicians and outside groups are allowed to make questionably valid claims. A 2012 survey by the Annenberg Public Policy Center found that campaign attack ads from outside groups are about 85 percent false. The IRS classifies these outside groups as 501(c)(4) organizations, which are meant to “promote social welfare to benefit the community.” Due to their status, they are not required to disclose their donors. 

There are countless examples of unsubstantiated political advertising claims from political parties and advocacy groups. A recent example involved Americans For Prosperity, a conservative political advocacy group that spent $400,000 on a TV ad attacking U.S. Senator Mark Begich (D-Alaska) for his position on a potential carbon tax during his senate race this year.

While the ad had multiple claims, one was that Begich pushed Senate Majority Leader Harry Reid (D-Nevada) to make carbon tax a priority, presenting lines from a letter written to Reid in 2010 from Begich and other Democratic senators. Americans For Prosperity focused on one line of the letter to support their position: "We believe the scale of this challenge dictates the need for a comprehensive solution that includes making polluters pay through a price on greenhouse gas emissions."

Begich claims that he doesn’t support a carbon tax and Politifact determined the ad’s claims were mostly false. While this isn’t the most deceptive or scandalous case, the ad shows just how easily words can be omitted, manipulated or taken out of context in order to shape messages that progress the agenda of any political candidate or advocacy group, due to the free speech protections they benefit from.

Political advertising also affects broadcasters. If the advertisement comes directly from a political candidate, the broadcaster cannot censor the ad and must run it as is, regardless if there is falsehood in the message. In turn, the broadcaster is not liable for the content of a candidate’s ad. Advertising that comes from third-party groups can be accepted or rejected by broadcasters, but they are rarely rejected, which results in “just as many outrageous claims about candidates in third party ads as we see in the candidate ads that can’t be censored.” 

Like commercial advertisements, political advertisements also contribute to the “marketplace of ideas” in which the value of some information is vital to an individual, culture, religion or society, while other information is not so important. It is ultimately up to the audience to determine the value of the information presented to them. Diverse viewpoints can be taken into consideration, which is why the First Amendment is so important. 

While the messages presented in political ads may not have value to some, others see benefit due to the Supreme Court, which upholds the idea that unregulated political speech is vital to the proper functioning of society, democracy and the political process.