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The ethics of free speech in advertising

by Simon Longstaff

In recent months, we have seen a swag of proposals designed to influence the content of advertising.

For example, Senator Ron Boswell has been engaged in a robust dialogue with motor vehicle manufacturers about the extent to which ‘speed’, coupled with ‘unsafe’ driving practices should be used to sell cars.

Mary Delahunty has enrolled state governments in a proposal to have advertising agencies sign up to a voluntary code of conduct establishing guidelines for the portrayal of women. The message is clear–state governments will only do business with those who share their values.

Then there are the fairly routine calls to tighten up regulations governing advertising to children–most recently prompted by expressions of concern about the effect of fast-food ads on the dietary choice and subsequent health of children.

The response to such proposals has been swift and predictable. Those opposed to such moves have invoked a principle of central importance to our society, the ‘principle of free speech’.

Given all of the heat generated by this debate and the rather foolish reduction of the issues into a contest between “free speech and censorship”, it might be worth spending a moment to think through the whole question of free speech and its limits.

The first thing to note is that the right to free speech is fundamental to the maintenance of any legitimate democracy. If people cannot speak freely, then their ability to formulate new ideas and then engage the support of their fellow-citizens (often against the interests of the established order) will be undermined.

The first step to controlling the minds of a population is to control their language. Given this, we need to be vigorous in our defence of free speech–even to the extent of allowing things to be said that many would find to be offensive.

To accept that there is an organic link between freedom of speech and democracy is to accept that there are serious (non-trivial) reasons for protecting the right to free speech from erosion.

However, this does not mean that only ‘serious’ speech should be protected. One of the implications of a commitment to free speech is that the right extend to all forms of expression–even the trivial.

In general, it is just far too difficult to set in place a framework for distinguishing between the kind of speech that should be protected and the kind that should not.

Of course this means that many offensive, trivial, false and ridiculous utterances are protected–not for their own sake–but as the price we pay for protecting our democratic liberties.

Yet, even the most trenchant defenders of the principle of freedom of speech will probably recognise and accept the point that freedoms (of any kind) need to be exercised with responsibility.

To take an old example–I might be free to join in a hoax and yell out “Fire!” in a crowded cinema, but should I? Would doing so be an abuse of my privilege? Does my right to free speech amount to a right to cause innocent people fear and distress–in order that I have some ‘fun’?

Similarly, most reasonable people accept that the right to free speech be limited by a proper concern for how our words might affect the reputation of others. Laws against defamation are not just there for the sake of it–they exist to protect people from unwarranted attacks on their character and standing in society.

Now some people think that it’s enough to say that we should be free to say anything we like–provided that it’s not against the law. This is a cop-out. To leave it to the courts and parliaments to set the standards for free speech is to abdicate responsibility for our actions.

In such matters, the law is a kind of ‘coward’s castle’. Surely yelling “Fire” in the crowded cinema is wrong–irrespective of what the law says. Surely, we have to decide matters for ourselves–with the law being a minimum (rather than maximum) standard for us to apply.

What does this mean for the debate about advertising? Well, the first thing to realise is that society does not value the right to freedom of speech for the sake of allowing unfettered creative freedom in advertising. Advertising is important for the operation of free markets.

But we should never forget that free markets are merely a tool for the betterment of human society; they have no value in themselves. So, the right to commercial free speech is derived from something far more important–freedom of speech as an underpinning of political freedom; the freedom to be who we are and build the society we choose to make.

Given this, I believe that the people who make advertising have a duty to ensure that they exercise their right to commercial free speech in a responsible manner. That is, they shouldn’t act in ways that undermine public confidence in the belief that the right to unregulated free speech can, in general, be exercised responsibly.

The paradox in this should be clear–we will only maintain the freedoms that really matter by freely modifying those that don’t.

At some point (and it can be hard to discern) we need to be able to exercise the judgement of self-restraint (even if it costs a dollar to do so).

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