Anything But the Truth

During the more than forty years that I spent in advertising, I have on many occasions found myself having to defend it from popular culture’s depiction of the integrity and socioeconomic benefits of advertising as somewhat below that of used-car and insurance salesmen. The recent television show, “Mad Men” has only further lowered this opinion.

“Advertising makes people buy things they don’t want or need,” goes the loudest anti-advertising chant. Nonsense. Advertising can’t “make” people buy anything. It exerts no influence toward the purchase of products people don’t want. If it did, then someone has to explain the market’s rejection of the vast majority of newly introduced packaged-goods products, which consumers obviously didn’t want despite usually aggressive promotion by advertising. Products fail because people don’t want them, advertising notwithstanding. (Whether anyone “needs” a particular product is a more complicated practical as well as emotional issue, which is what advertising is really about, and which is best left to the psyches of consumers rather than cocktail commentators confident that they know people’s needs and what is best for them.) Another of the louder mantras against Madison Avenue – that “advertising lies” — is itself largely untrue, since one of the surest ways to destroy a product is to lie about it by claiming it does something it doesn’t. If consumers don’t realize the deception themselves — which in most product categories they can, they do, and they won’t again buy a product that disappoints them — there are punitive legal remedies that government agencies and competitors can use to prevent false advertising.

But there’s one big exception: political advertising. It does indeed lie, which I cannot defend, and which ought to be punishable — the Constitution notwithstanding — by significant fines if not imprisonment. Certainly in a country that cherishes liberty, laws should limit freedom only to the extent of protecting people from harm. Well, doesn’t an electorate informed by lies endanger democracy? And what about the devastation caused by candidates whose lies help get them elected? (I have in mind, as just one example, Lyndon Johnson, architect of the Vietnam War, whose advertising lies depicted Barry Goldwater as a nuclear war monger and himself as the candidate for peace, which I assume got him votes and I know got people killed.)

The First Amendment guarantees that “Congress shall make no law … abridging freedom of speech” which remains the primary justification for political advertising enjoying the freedom to say anything it wishes, even when blatantly, provably false. But in fact, we have many necessary laws that limit freedom of speech, the best-known being the legal doctrine taught in elementary school civics that you can’t yell “fire” in a crowded theater. So why has the Supreme Court consistently upheld the notion that there should be no legal requirement for truth in political advertising, or in more practical terms, that political advertising enjoys the freedom to lie? I think for at least two reasons — first the belief that limiting political speech threatens democracy more than any particular liar getting elected (perhaps philosophically sound but realistically tenuous) and second, because the election process makes possible response and redress within the context of a political campaign, allowing voters to weigh and judge opposing claims (an assumption I find frighteningly unreassuring).

And admittedly, when states have attempted to enforce truth-in-advertising laws in nonfederal elections not covered by the First Amendment or the Supreme Court, they have had very little success given the need for a plaintiff to prove malice, and the almost impossible requirement to prove a defendant knew for a fact that his advertising was lying.

So if we can’t effectively legislate against false political advertising, if we can’t punish the perpetrators legally, then all we can do is hold them accountable on Election Day. But somebody with credible independence has to call them out during the campaign. It should be the media — a knowledgeable, objective free press meeting its responsibility to insure a well-informed public. Unfortunately, the idea of “media responsibility” in America has become an oxymoron.

As my children would say, “it sucks.” I wish I had an answer.

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