Ad Break: Why Curbs on Advertising Harm Free Speech

Abstract

Advertising – ‘commercial speech’ – is a form of communication which brings considerable benefits to the economy and society, and restrictions on it need clear justification. Until the mid-1950s advertising was for the most part unregulated, subject only to laws relating to fraud and defamation which also affect other forms of speech. Since then, direct government restrictions have grown, and are still growing, in an attempt to serve public policy objectives of one kind or another. Some of these interventions may achieve little gain at excessive cost, but at least they are discussed in Parliament. However, many restrictions come from what is ostensibly industry self-regulation by the Advertising Standards Authority (ASA), a private body which has morphed from concern with ensuring that advertising is ‘legal, decent, honest and truthful’ to a much wider and more problematic brief. Today the ASA does not simply respond to complaints; it proactively seeks out breaches of its own rules. Moreover it deliberately attempts to change public attitudes through forbidding representation of certain types of otherwise lawful behaviour which may give offence to some groups. The ASA is an unrepresentative body which imposes its own attitudes on the advertising industry and thus on the general public. Its interpretation of ‘offence’ and ‘harm’ appears to differ from the view taken by others concerned with regulatory issues, such as Ofcom and Clearcast. As a consequence, creative expression which is permissible in television and films, YouTube, the theatre, books and newspapers is in effect forbidden in advertising. Rules are continually being expanded to cover more areas of our society and culture, and the ASA recently argued that even political manifestos should be regulated. We should reflect much more carefully on the often unthinking way in which we have acquiesced in restrictions on commercial speech while permitting similar material under the banner of entertainment or intellectual free speech. As Nobel prize-winning economist Ronald Coase discerned, the case for free speech is indivisible. If certain types of speech and imagery are forbidden in advertising, it may not be long before there will be pressure to forbid them in the arts, entertainment and politics.