WASHINGTON, Dec. 31 (UPI) -- A liquor distiller recently announced plans to buy ads on the NBC television network, ending a 50-year-old voluntary prohibition on such spots. Others have been running spots in local broadcast and cable markets as well as creatively promoting their products through sports and public television sponsorships. Should liquor companies be permitted access to the airwaves or should the current voluntary prohibition be made a permanent regulation? UPI's Peter Roff, a conservative, and Jim Chapin, a liberal, face off on this critical question.
Roff: The First Amendment matters
The Americans who constitute the political classes have a strange relationship with the First Amendment guarantee of free speech.
Many of them, on both the left and the right, engage in tortuous hair-splitting to justify support for or suppression of someone else's opinion or product.
As pertains to pornography for example, the U.S. Supreme Court has held that community standards may dictate when free speech may be curtailed. However, the only guidance given by the court as to what the standards were are the immortal words of the late Associate Justice Potter Stewart, who said he knew it when he saw it.
Cultural elites permit broad latitude for expressions that are sexual or artistic, yet they slam the door shut when the subject moves to religion.
The homosexual-themed photographs of Robert Mapplethorpe and sexually explicit performance art of Annie Sprinkle are sanctified and government-funded. Those who object are portrayed as cultural Neanderthals and narrow-minded bigots.
That same liberal broad-mindedness evaporates when the slightest hint of integrating mainstream religious beliefs into a public building or a school is in evidence.
Those who would not object to an exhibition of Mapplethorpe photos on the walls of a public high school would fight vehemently to prevent the Ten Commandments from being hung in their place on the same walls. And the reverse is no doubt also true.
This brief exegesis on contemporary free speech issues is a necessary preamble to any discussion of commercial speech.
There are those who do not view all speech in the same way. They put commercial speech in a separate category that is not entitled to absolute protections under the First Amendment.
Vintners are prohibited from advertising the beneficial effects that are associated with moderate consumption of red wine.
Liquor distillers and cigarette manufacturers voluntarily withdrew their ads from television and radio in an effort to head off government prohibition.
Pharmaceutical companies are banned from discussing how their products can help save lives or ease suffering if the specific usage has not passed FDA muster.
Commercial speech is curtailed by law or government threat in the name of protecting us from evil corporations. These bans deny us information and the ability to make rational choices. And they are wrong.
Instead, commercial speech should receive the same type of absolute protections that other types of speech are supposed to have.
People have power in the marketplace. They can change corporate behavior through their decisions of what to watch or not watch, buy or not buy. The fact that they do not like liquor ads on TV does not necessarily give them the right to keep them off the air through coercion.
But, in the age of political correctness, the idea that people do not stand up for the right of a distiller to buy ads on NBC is not surprising.
The first amendment has been turned on its head. Things the founders would never have dreamed deserved protection have been put off limits while political speech, the very essence of the amendment, is constantly under attack.
And with Congress repeatedly looking at ways to curtail the free exercise of political speech -- with House Minority Leader Dick Gephardt, D-Mo., going so far as to suggest the need to amend the first amendment -- it is no wonder that commercial speech, its poor second cousin, is so often overlooked.
Chapin: "Elites," Booze, and the First Amendment
The word "booze" itself came from America's first modern political campaign for the presidency, the election of 1840, remembered for the best political slogan of all time, "Tippiecanoe and Tyler too!" (Why was it the best?: you remember it 160 years later, don't you?)
Harrison's campaigners, picking up the "log cabin" theme of their candidate (who was actually born in a Virginia mansion), handed out whiskey bottles shaped like log cabins, and filled by the E.C. Booz Distillery of Philadelphia.
1840 was probably about the peak of alcohol consumption in the United States and it is hardly surprising that a strong prohibition movement, fueled by a newly revivalistic evangelical Protestantism, appeared about the same time. No campaign could have done the same thing at any time since. In the 19th century, the prohibition movement was closely linked to liberal causes, and its adherents were more likely to be Whigs and then Republicans than to be Democrats. Indeed, when prohibition-linked forces did well, such drinking groups as German-Americans tended to swing towards the Democrats in response.
The 18th (prohibition) Amendment to the constitution passed just after World War I, and by then, while still linked to the Republican Party, it was seen as a conservative measure. It was repealed early in the administration of the next Democratic President, Franklin Delano Roosevelt.
Even today, prohibition as a cause remains strongest in rural, conservative America, most particularly in Mormon Utah and the Baptist South. All these states place various restrictions on public use of alcohol, which are much less likely to be found in the bicoastal America which voted for Gore.
The cause of drunk driving, rather than alcohol use itself, became the way in which liberals got involved with the issue. But it's pretty hard to make a half-century old ban into a result of "political correctness," let alone "elite liberals."
Booze ads are controversial not because of liberals but because of the dangers of the product. After all, 10 percent of alcohol drinkers consume 60 percent of alcohol. The technical term for such people is "drunks."
Presumably liquor companies want to run ads because they will induce more liquor drinking. And it's hard to believe that more liquor drinking would be good for society.
To argue that commercial speech should override all other considerations is obviously to be selective in the extreme. If one wanted to run ads for condoms, or pornographic movies, or for that matter all legal products, I suspect that conservatives would be the first to line up in protest.
And clearly the limitations on the "commercial speech" of tobacco companies is far greater than on alcohol.
It's amusing that both the ACLU and many conservatives seem to know exactly what the Founding Fathers had in mind about television broadcasts, a technology which wasn't exactly well-known in 1789.
As a matter of fact, if the Founding Fathers knew exactly what they "meant" by the First Amendment, why did they divide so bitterly over the Alien and Sedition Acts, passed just a few years after that amendment?
As for "commercial speech," somehow it never occurred to the writers of the First Amendment to protect it with any explicit language. That's probably because there wasn't a lot of commercial speech in the 18th century.
I'm afraid that we can't look to the Founding Fathers to tell us what to do about booze ads. And arguments in the form of "if Thomas Jefferson were alive today, his position on (wiretaps, pornographic movies, alcohol ads, etc.) would be . . ." have never struck me as a particularly useful way of making judgments about social policy.
The government's right to consider questions of television ads rests on its control of the airwaves. Those airwaves (often called "a license to print money") have been granted -- at no cost -- to some private entities over other such entities -- and the government uses its full resources to prevent competition in those allotted slots.
The government has and should have no such power over media that does not use public resources -- such as newspapers and magazines.
But if government chose -- as it does not in the case of booze ads -- to limit what is advertised on broadcast television on the basis of what is good for society as a whole that would be a perfectly legitimate exercise of its power.
And an exercise which, in the case of sex and violence, more clearly a matter of content and therefore presumably protected, is advocated every day by conservatives in Congress.
Booze ads on TV are not a particularly good idea, and if the best defense of them is an argument for the absolute right of "commercial speech" based on a First Amendment absolutism that exceeds that of Justice Hugo Black, that's not a very good defense.
