Contemporary Advertising 14th Edition by William Arens ,Michael Weigold ,Christian Arens

تمرين 7

The United States was less than two decades old w h en, in 1789, the U.S. Congress proposed a set of 10 basic rights to be enjoyed by all citizens. These rights were so strong that they could not be infringed by government.
The first of the amendments, dealing with speech and religious freedom, was thought to be relatively uncontroversial. James Madison, who drafted the amendment, thought that "if we confine ourselves to an enumeration of simple, acknowledge principles," there would be little disagreement about whether it should be passed. Madison's talent as a political thinker and writer clearly did not extend to his ability to forecast the future, as the meaning and scope of the First Amendment has preoccupied the courts ever since.
The amendment reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Americans still struggle with the nature and scope of First Amendment protections in our lives. For example, what does the amendment protect and what does it not In the former category, the courts have consistently included criticism of the government, including the burning of the U.S. flag. In the latter, they have included harassment, obscenity, and defamation.
And somewhere in a rather gray area is commercial speech. Commercial speech is speech "where the speaker is more likely to be engaged in commerce, where the intended audience is commercial or actual or potential customers, and where the content of the message is commercial in nature."
Historically, court decisions have evolved from the notion that commercial speech enjoys no First Amendment protection (the 1942 Valentine v. Christensen case) to a more nuanced approach, as suggested in the Central Hudson case. The key idea from Central Hudson is that commercial speech may be regulated, but not with impunity. Regulation is permissible only when there is a compelling reason to do it and it is done in the narrowest possible way
In 2011 the Supreme Court issued a ruling with important implications for commercial speech. The case, Sorrell v. IMS Inc., concerned data mining, a practice whereby companies develop marketing strategies by analyzing sales data. IMS Health, a data-mining company, sold information about large numbers of prescriptions to pharmaceutical companies. The data had no information about the consumers who bought the prescriptions, but they did include the names of the doctors who wrote them. Doctors who were not prescribing branded drugs were identified and then contacted by sales reps for the drug companies.
Vermont passed a law banning the practice. When the case went to the Supreme Court, representatives of the state defended the ban by claiming that the data increased the likelihood that (a) doctors would prescribe branded drugs over less expensive generics, thereby raising state health care costs; (b) drug company marketing campaigns would succeed, resulting in busy doctors relying more heavily on promotional materials for learning about new drugs; (c) companies could tailor their messages to specific doctors; and (d) doctors would be exposed to "harassing" visits from pharmaceutical reps.
As one reviewer noted, "Essentially, Vermont's law attempted to correct what it saw as an unbalanced marketplace of ideas that undermines the state's interests in promoting public health, protecting prescriber privacy, and reducing health care costs."
Before finding out what the Supreme Court decided in the case, you may wish to form your own opinions about this practice, and determine for yourself whether you believe Vermont had the legal authority, and even the ethical responsibility, to ban the use of data mining by the drug companies. On the legal authority side, you may wish to review the four criteria outlined in Central Hudson (see page 81). Ethically, you may wish to review the reasons Vermont offered to defend its law. Additionally, you may wish to think about freedom of speech and its value to society. Do you agree that First Amendment protections should apply to commercial speech And is data mining an example of "speech"?
The Supreme Court, in a 6-3 opinion, upheld a lower-court ruling that the Vermont ban was unconstitutional because it violated the First Amendment. The majority opinion noted that the law restricted the sale and use of information about prescriptions, but only for the drug companies. Other companies were still legally allowed to purchase the information. The Court also disagreed with Vermont's claim that sharing information gleaned from data mining is "conduct," not "speech." It ruled that "the creation and dissemination of information are speech for First Amendment purposes." Finally, Vermont's effort to protect the privacy of doctors and lower its health costs by limiting speech rights of drug companies was wrong because "the fear that people would make bad decisions if given truthful information cannot justify... burdens on speech."
Since this is an ethical analysis, it seems important to return to the notions embodied in the First Amendment. Why protect free speech at all What if Vermont's assertions are true What if data mining raises health care costs, skews doctors' decisions in favor of more expensive rugs, and subjects doctors to, if not harassing, then possibly undesired visits from drug company salespeople Can freedom of commercial speech be more important than serving the public interest, as Vermont asserted its law would do?
Americans, perhaps like Madison, think it uncontroversial that a good society values free speech. And yet Americans are also confronted with expression they find offensive, rude, illogical, and even heretical. In the hometown of one of this book's authors, Gainesville, a local preacher attracted global attention when he threatened to make a political statement by burning the Koran. Confronted with this kind of expression, many people reacted with revulsion.
So why value speech at all Most countries, even relatively free ones, do not have guarantees of free speech as powerful as the First Amendment. The framers of our Constitution enshrined freedom of speech for several reasons. One was that they believed that people and institutions make better decisions when they are exposed to different
points of view, and diverse viewpoints are best encouraged in a climate of free speech. Another was that the framers believed that the right of every citizen to openly criticize government is vital to a free society. The First Amendment was created from a conviction that a virtuous government must answer its critics in society and the press.
At an abstract level, almost everyone agrees with freedom of speech. But moving closer to the issues in our day-to-day lives, people may disagree. As we've seen, the courts have had conflicting views on whether commercial speech is protected by the Constitution. The Supreme Court has, for example, upheld many restrictions on the marketing of cigarettes. In the marketplace of ideas, how important are expressions about the marketplace?
What is your opinion about whether commercial speech should be protected by the First Amendment?