Monday, November 17, 2008



Different human discourses have different languages. Academics, for example, use particular words and modalities that lawyers do not. Salesmen use different words than scientists, and artists speak differently than politicians. Language gives people away; and there really are not that many ways to say the same thing. Some call this group-specific language “jargon,” but I view it more broadly. “Jargon” has a negative connotation because it suggests that a listener cannot understand the technical words that characterize a “professional” group. But I think you can completely understand any group simply by recognizing the special words they use.

With time, I have seen that you can expect certain words from certain sources. And from those words, you can peer into the group’s values. To give an example, I expect colorless coinages about teamwork and profit from a business that seeks new clients, while I expect staccato sentences and vacuous dramatic strokes from a politician, such as: “It is a new day. Let us wake up and rise together.” In summary: You know what you’re getting in advance simply by understanding the group that is speaking.

Commerce speaks through “advertising.” Commerce is that far-ranging human discourse that brings people together for material exchange. Commerce is not just buying, selling, renting, leasing and lending. It is the entire mental exercise that surrounds these activities. Anyone who makes money can tell you that the “mental exercise” necessary to win business success is all-encompassing. Every action, every thought, every inclination, every word and every dream becomes “commercial” because they all focus the mind on the ultimate act of buying or selling. Put another way, commerce dominates human life. We live for it, even if we would rather not. It is a vast game in which there are winners and losers. We all struggle to be winners, ushering in frantic competition for jobs, contracts, deals and customers. Commerce is war, even though commerce functions best in peacetime.

Commerce is war between buyer and seller. It is also war between vendor and customer, landlord and tenant, employer and employee and lender and borrower. Commerce pits those who benefit against those who suffer detriment. Yet commerce also does its best to conceal its warlike nature. Advertising helps commerce hide its true colors. Advertising is a special linguistic form that provides just enough information to entice the listener to benefit the speaker without realizing that he will suffer in the process. Because human beings live for commerce, and because commerce is warlike, it is no surprise that advertising surrounds us no matter where we turn. It is printed on buses and painted on buildings. It emanates orally from radios and televisions. It flashes before our eyes on computer screens. It constantly bombards our senses with messages intended to entice us to enrich the speaker.

Human beings are sensory creatures. Advertising overruns their senses. They respond to the most memorable sensory stimulation. That is why “good advertising” is like a “lasting memory;” we only remember things that engage our senses in a special way. Just the same, we only respond to advertising when it engages our senses in a striking way that other advertising does not. To that extent, advertising does not need to stimulate the intellect to be successful; it must merely trigger a very basic sensory response in the listener. A good example is the GEICO gecko. This is successful advertising for precisely the same reason that is so intellectually barren: GEICO sells car insurance, yet its advertising says nothing about car insurance except for a tiny sound byte at the end of the message that says: “You could save up to 15% on your car insurance.” Prior to that, we witness an encounter between a cockney-speaking animated gecko and some potential insurance client that explains nothing about GEICO’s products or services. The listener learns nothing that might help him make an informed decision about why GEICO is better than its competitors. But GEICO is wildly successful because its advertising burns itself into the listener’s mind. Through sheer repetition and memorable sensory stimulation, GEICO forges an association in the listener’s mind between car insurance and the gecko. One day, the listener will have to buy car insurance. When he does, the mental connection will kick in and he will immediately call GEICO. This is successful advertising.

GEICO’s advertising shows that most advertising does not focus on the goods the speaker wishes to sell. Rather, it simply attempts to forge a mental connection between the goods and a memorable—though unrelated—sound or image. In this sense, advertising has drifted far from the United States Supreme Court decision that granted First Amendment protection to so-called “commercial speech:” Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). Prior to that decision, States could freely ban advertising because the Court had previously concluded that advertising was not the “sort of speech” that the First Amendment was designed to protect. Valentine v. Christensen, 316 U.S. 52 (1942). Rather, the First Amendment protected only speech that had a part in the “exposition of ideas;” in other words, only speech expressing individual conviction, belief and thought deserved protection. By contrasting implication, “advertising” had no part in that exposition. After all, advertising is remarkable for its banality. It does not express “ideas” in the profound, individual sense. Rather, it merely attempts to entice a listener to enrich the speaker. The First Amendment protects a “hierarchy” of values, and advertising did not fit within that hierarchy.

But the Court decided to open a Pandora’s box in Virginia State Board of Pharmacy. It backed away from its conclusion that advertising was “valueless,” reasoning instead that “advertising” is necessary to maintain a “free flow of information” about products and services. According to the Court, such a “free flow of information” was essential to allow the public to make the “numerous private economic decisions” that maintain a “free market economy.” Still, the Court seemed to recognize that it was playing with fire by giving a free hand to advertisers. Later in its decision, it emphatically pointed out that “commercial speech” was not the “same as other varieties,” and that the State could suppress it more readily than, say, political speech. Recognizing this distinction, the Court said that commercial speech could only claim First Amendment protection if it was “truthful and legitimate.” It could not claim protection if it was “false, misleading or deceptive.” The Court knew that commercial speakers possess far more information about their products than their listeners, and that this disparity allows commercial speakers to selectively choose the information they disseminate. The Court attempted to address this danger by noting that States could require commercial speakers to include “warnings and disclaimers” on their messages to avoid deception.

Warnings and disclaimers? Have you ever seen these on a television advertisement? Sure you have—but you probably did not read them. Just watch any advertisement for an investment service, a lawyer or a medication. At the end of the message, a block of illegible text will flash on the screen. If you have TIVO, you could pause the program and try to read the text. If you took the time, it would say something like this: “These results are not typical. Restrictions, limitations, qualifications and exceptions apply. Offer not valid in all areas. Some fees are applicable. The State of Wyoming makes no warranty as to financial success. Seller is not responsible for financial loss. Financing though Bank of Minnesota, N.A., subject to credit approval at Buyer’s expense; not all applicants will qualify. 0.0% APR financing only for qualified buyers; not all buyers will qualify. Seller may alter the terms of this offer without notice…” And so on and so forth.

Advertisers would not publish these “warnings and disclaimers” if they did not have to. After all, their goal is to entice as many people to enrich them as possible, and negative information reduces the chance that people will spend their money. Yet the Supreme Court “requires” them to avoid “deception.” Advertisers meet this requirement by publishing these meaningless, illegible block texts that no listener can even read, let alone rationally consider. I have little doubt that the Supreme Court truly wished that advertisers would do their best to present a balanced view about their products. But it is not at all surprising that advertisers chose simply to comply with the Court’s reasoning in letter, not spirit. After all, commercial speech is warlike. If advertisers played fair, they would lose the war. Perfectly truthful advertising would damage an advertiser’s business: It would create negative associations in the listener’s mind. After all, who would buy GEICO if GEICO had to reveal that they received low marks from consumer advocacy groups? The key, then, is to present as little bad information as possible without being declared “legally deceptive.” It is permissible to be “actually deceptive,” for advertisers need only comply with legal definitions. And everyone knows that legal reality rarely corresponds to actual reality.

Today, commercial speech mocks the Supreme Court’s reasoning in Virginia State Board of Pharmacy. Most advertising does not present “truthful and legitimate” information about goods and services. Rather, it presents as much deceptive information as possible—and withholds as much damaging information as possible—to avoid being declared “legally deceptive” under various legal standards. To be blunt, it is easy to conform behavior to avoid violating written law, and advertising is no exception. While the Court may have wanted to introduce “fairness” into commercial discourse by requiring “truthful” advertising, it grossly misunderstood what commerce means. Commerce is war. War is not fair. The goal is victory at all costs. Advertisers have sidestepped Virginia State Board of Pharmacy simply by avoiding outright lies. It is easy to refrain from saying that the sun is purple. It is also easy to say: “Our medication is widely successful” when in fact it had no effect on 40% of patients who took it. In short, advertisers can completely ignore Virginia State Board of Pharmacy by skillfully crafting vague, appealing claims.

Advertisers have undoubtedly won the legal war to say what they want. But that does not end the analysis. Now that we know what advertisers will say, we can understand their values through their language. We can assume that advertisers will not give us all the information they possess. If they did, we would not buy from them. We can also assume that an advertiser wants to entice us to buy something because his products are “better” than others. What makes them better? We will have to analyze values to determine that.

Equipped with these tools, consider this commercial slogan, printed on the side of a bakery truck: “Stonewell Bakers : People and Products You Can Depend On.” What does this say? The advertiser wants to entice us to buy baked goods from him because his “products and people” are “better” than the competition. Why are his products and people better? Because “you can depend on them.” What is the implication here? That most “people and products” are not dependable? That people want dependability, but rarely get it? I think we can make both conclusions, and I also think we can make some generalizations about commercial values at the same time.

Human beings are generally not dependable. They do not listen to us attentively, they forget to do things they promise and they deceive whenever it is advantageous to do so. In commercial life, people fail to deliver what we order, they forget details and their products do not work. Stonewell Bakers understands these concerns. Its advertising claims that it is “dependable” in an industry where others are not. Is it truthful? In the abstract, it is impossible to say. It is not an outright lie, so the State cannot suppress its message. Nor is the message “legally deceptive.” To that extent, this banal commercial appeal enjoys the same constitutional protection as a speech about the War in Iraq.

Advertising gives us an opportunity to understand commercial values. It is not easy to ignore commercial speech because it bombards our senses every day in an attempt to trigger basic mental associations, not intellectual responses. Yet if we closely examine advertising and the words it uses, we can defend ourselves against deception to make individual decisions about what we really want. We can safely assume that advertising will not tell us the full story about goods and services, and we can safely assume that the speaker really wants us to give him our money. It is important to hold these assumptions in mind when we engage in commerce, because deception is the norm, no matter what aspirations the Supreme Court may have to the contrary. We may not be able to make human beings truthful and decent, but at least we can understand their discourse in a way that allows us to protect ourselves. By understanding advertising as a language, we understand commerce. And that allows us to avoid being manipulated every day.

I go a step further: I mute advertising on television. I refuse to even hear the messages. After all, I understand the language. I know what I will hear. I can’t shut out advertising on the street; I just do my best not to look at it. Advertisers may fight for my senses, but I don’t even give them that.

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