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Free Advertising: the Case for Public Relations As Commercial Speech LCB10.2_PIETY.DOC 5/17/2006 4:50:09 PM FREE ADVERTISING: THE CASE FOR PUBLIC RELATIONS AS COMMERCIAL SPEECH by Tamara R. Piety* The commercial speech doctrine, the doctrine establishing a subcategory of protected speech under the First Amendment, has been under increased fire, most prominently in 2003 with Nike v. Kasky, but also in other cases around the country covering a variety of contexts. A key distinguishing attribute of the commercial speech doctrine is that it permits the government to regulate the speech that it covers for its truth. This is precisely what the government may not regulate in the area of political and expressive speech. Many critics would like to see the commercial speech doctrine done away with altogether. They argue commercial speech should be treated like political and expressive speech under the First Amendment. Professor Piety has argued elsewhere that subjecting commercial speech to the same strict scrutiny as political and expressive speech would have far reaching negative consequences. In this Article, Professor Piety addresses a narrower concern: the argument that (assuming efforts to eliminate it altogether fail) the commercial speech doctrine’s application should be expressly limited to “traditional advertising,” excluding corporate speech in the form of public relations. She proposes that this argument is misplaced because the purposes articulated by the Supreme Court in establishing the commercial speech doctrine would be better served by applying it to all marketing-related speech, including public relations. I. COMMERCIAL SPEECH ........................................................................375 A. The Listeners’ Rights.........................................................................376 B. The Need for Accurate Information in the Operation of a Free Market ...............................................................................................378 C. Definitional Difficulties .....................................................................381 II. WHAT IS “ADVERTISING”? .................................................................382 A. Advertising as “Information”............................................................384 B. Advertising as Product Differentiation Through Emotional and Visual Appeals...................................................................................386 * Associate Professor, University of Tulsa College of Law. Thanks to Ellen Rigsby, Sara Manaugh, Darien Shanske, and the other participants of the 2005 Law, Culture & Humanities Conference in Austin, Texas where this Article was first presented. Thanks also to Jami Fullerton, Professor of Advertising at Oklahoma State University who brought the Fitzgerald article to my attention, and to Ronald Collins, David Skover, Doug Kysar, Ed Baker, and Gerald Torres for their support. © Copyright 2005 Tamara R. Piety. 367 LCB10.2_PIETY.DOC 5/17/2006 4:50:09 PM 368 LEWIS & CLARK LAW REVIEW [Vol. 10:2 III. WHAT IS A BRAND?..............................................................................388 A. Corporate Image as a Part of Marketing ..........................................391 B. Nike as a Case Study.........................................................................392 C. Advertising: From Economic Waste to Value Added.........................398 IV. WHAT IS PUBLIC RELATIONS?...........................................................400 A. The Enron Story.................................................................................405 B. The Case Concerning Tobacco..........................................................408 V. A PROPOSED TEST ................................................................................410 A. The Speaker .......................................................................................410 B. The Intended Audience ......................................................................411 C. Message Content ...............................................................................412 VI. CONCLUSION .........................................................................................412 Advertising is publicity that a firm pays for; public relations seek publicity that does not require payment to the media for time or space.1 Advertising is the continuation of public relations by other means and should be started only after a PR program has run its course.2 The commercial speech doctrine, the doctrine establishing a subcategory of protected speech under the First Amendment, has been under increased fire, most prominently in 2003 with Nike v. Kasky,3 but also in other cases around the country covering a variety of contexts.4 A key distinguishing attribute of the commercial speech doctrine is that it permits the government to regulate the speech that it covers for its truth. This is precisely what the government may not regulate in the area of political and expressive speech.5 Many critics would like to see the commercial speech doctrine done away with altogether.6 They argue commercial speech should be treated like political and expressive speech 1 MICHAEL SCHUDSON, ADVERTISING, THE UNEASY PERSUASION: ITS DUBIOUS IMPACT ON AMERICAN SOCIETY 100 (1984). 2 AL RIES & LAURA RIES, THE FALL OF ADVERTISING AND THE RISE OF PR xii (2002). 3 539 U.S. 654 (2003). 4 United States v. Wenger, 427 F.3d 840 (10th Cir. 2005) (First Amendment offered as a defense to securities fraud); Whitaker v. Thompson, 353 F.3d 947 (D.C. Cir. 2004) (marketers of saw palmetto who claimed on label that it might be beneficial for prostate condition asserted First Amendment as a defense to FDA action). 5 See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 271−72 (1964) (First Amendment may require government to tolerate even false or erroneous speech in some contexts). 6 See, e.g., Motion for Leave to File Amicus Curiae Brief for the Advancement of Capitalism Supporting Petitioners at 3−11, Nike v. Kasky, 539 U.S. 654 (2003) (No. 02-575) (arguing for reconsideration and abolishment of commercial speech doctrine). The Center for the Advancement of Capitalism actually argued for the reinstatement of the Valentine v. Chrestensen, 316 U.S. 52 (1942) standard which would arguably permit even more regulation of commercial speech than the current doctrine. See infra notes 31–76 and accompanying text. LCB10.2_PIETY.DOC 5/17/2006 4:50:09 PM 2006] FREE ADVERTISING & COMMERCIAL SPEECH 369 under the First Amendment.7 I have argued elsewhere that subjecting commercial speech to the same strict scrutiny as political and expressive speech would have far reaching negative consequences.8 Here I address a narrower concern: the argument that (assuming efforts to eliminate it altogether fail) the commercial speech doctrine’s application should be expressly limited to “traditional advertising,” excluding corporate speech in the form of public relations.9 I propose that this argument is misplaced because the purposes articulated by the Supreme Court in establishing the commercial speech doctrine would be better served by applying it to all marketing-related speech, including public relations.10 The claim that the commercial speech doctrine ought to be confined to traditional advertising was raised by Nike11 and by many of its amici12 in the Nike v. Kasky case.13 The argument is that the form of communication should dictate its treatment under the doctrine.14 Thus, because the disputed communications in the Nike case were delivered in the form of press releases, letters to the editor, advertorials, issue ads, and the like, Nike and its amici argued that the statements contained therein should be treated as political, and 7 See, e.g., Samuel A. Terilli, Nike v. Kasky and the Running-But-Going-Nowhere Commercial Speech Debate, 10 COMM. L. & POL’Y 383 (2005); Deborah J. La Fetra, Kick It Up A Notch: First Amendment Protection for Commercial Speech, 54 CASE W. RES. L. REV. 1205 (2004); Comment, Free Speech Protections for Corporations: Competing in the Markets of Commerce and Ideas, 117 HARV. L. REV. 2272 (2004). 8 Tamara R. Piety, Grounding Nike: Exposing Nike’s Quest for a Constitutional Right to Lie, 78 TEMP. L. REV. 151, 188−99 (2005) [hereinafter Piety, Grounding Nike]. Nor do I attempt to address here the more complicated issue of corporate speech−that is, speech by a corporation in non-marketing contexts. That too I have addressed elsewhere. Tamara R. Piety, Against Freedom of Commercial Expression: Some Reflections on Existing and Potential Costs (2005) (unpublished manuscript, on file with author) [hereinafter Piety, Against Freedom of Commercial Expression]. See also R. George Wright, Freedom and Culture: Why We Should Not Buy Commercial Speech, 72 DEN. U. L. REV. 137 (1994). 9 See, e.g., Bruce E.H. Johnson & Jeffrey L. Fisher, Why Format, Not Content, Is The Key to Identifying Commercial Speech, 54 CASE W. RES. L. REV. 1243 (2004). 10 At present it is not clear what the doctrine covers. That the public relations and marketing industry experts still believe it could go either way—that is, full protection or fully commercial—is illustrated by the following article appearing recently in the Journal of Advertising. Kathy R. Fitzpatrick, The Legal Challenge of Integrated Marketing Communication (IMC): Integrating Commercial and Political Speech, 34 J. ADVERTISING, 93 (2005). 11 See Brief for Petitioners at 22−24, Nike, Inc., 539 U.S. 654 (No. 02-575) (arguing that California decision “expands” the definition of commercial speech). 12 See, e.g., Brief for the Bus.
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