Advertising and constitutional rights

Advertising is equated with constitutionally guaranteed freedom of opinion and speech.^[32] Therefore criticizing advertising or any attempt to restrict or ban advertising is almost always considered to be an attack on fundamental rights (First Amendment in the USA) and meets the combined and concentrated resistance of the business and especially the advertising community. “Currently or in the near future, any number of cases are and will be working their way through the court system that would seek to prohibit any government regulation of ... commercial speech (e. g. advertising or food labelling) on the grounds that such regulation would violate citizens’ and corporations’ First Amendment rights to free speech or free press.”^[33] An example for this debate is advertising for tobacco or alcohol but also advertising by mail or fliers (clogged mail boxes), advertising on the phone, in the internet and advertising for children. Various legal restrictions concerning spamming, advertising on mobile phones, addressing children, tobacco, alcohol have been introduced by the US, the EU and various other countries. Not only the business community resists restrictions of advertising. Advertising as a means of free expression has firmly established itself in western society. McChesney argues, that the government deserves constant vigilance when it comes to such regulations, but that it is certainly not “the only antidemocratic force in our society. ...corporations and the wealthy enjoy a power every bit as immense as that enjoyed by the lords and royalty of feudal times” and “markets are not value-free or neutral; they not only tend to work to the advantage of those with the most money, but they also by their very nature emphasize profit over all else….Hence, today the debate is over whether advertising or food labelling, or campaign contributions are speech...if the rights to be protected by the First Amendment can only be effectively employed by a fraction of the citizenry, and their exercise of these rights gives them undue political power and undermines the ability of the balance of the citizenry to exercise the same rights and/or constitutional rights, then it is not necessarily legitimately protected by the First Amendment.” In addition, “those with the capacity to engage in free press are in a position to determine who can speak to the great mass of citizens and who cannot”.^[34] Critics in turn argue, that advertising invades privacy which is a constitutional right. For, on the one hand, advertising physically invades privacy, on the other, it increasingly uses relevant, information-based communication with private data assembled without the knowledge or consent of consumers or target groups.

For Georg Franck at Vienna University of Technology advertising is part of what he calls “mental capitalism”,^[35][36] taking up a term (mental) which has been used by groups concerned with the mental environment, such as Adbusters. Franck blends the “Economy of Attention” with Christopher Lasch’s culture of narcissm into the mental capitalism:^[37] In his essay „Advertising at the Edge of the Apocalypse“, Sut Jhally writes: “20. century advertising is the most powerful and sustained system of propaganda in human history and its cumulative cultural effects, unless quickly checked, will be responsible for destroying the world as we know it.^[38]