"Drowned in Advertising Chatter": The Case for Regulating Ad Time on Television

Georgetown Law Journal, Apr 2006 by Getz, Matt

The differing history of children's and "mainstream" television reflects two conflicting strands of thought regarding advertising. On the one hand, we recognize that advertising is, at least occasionally, beneficial, and that commercial interests should have the freedom to advertise. On the other hand, we also recognize that there is such a thing as too much advertising. The trick is setting the balance. In "mainstream" television, the market alone has set the balance.117 In the next Part, I will show that the resulting amount of advertising has detrimental effects on our democracy and does not accurately reflect consumer preferences; the government needs to intervene to rectify this problem.

III. WHY WE SHOULD REGULATE ADVERTISING

I do not argue in this Note that advertising is an inherently bad thing. Advertising can be informative and entertaining, it can enhance competition, and in the television context, it can pay for good programming. However, advertising, especially to excess, can also cause great harm. In this Part, I will discuss two sets of reasons supporting a move to limit advertising. In the first set, which I term cultural-democratic, I outline three harmful effects that call for limitation: (1) advertising discourages treatment of serious issues and encourages production of products geared towards advertisers' needs; (2) advertising encourages a particular type of thinking which is inimical to the development of a democratic culture; and (3) advertising manipulates a captive audience. I shall then discuss three economic reasons for limiting advertising on television: (1) television is a public good; (2) the presence of advertisers as intermediaries makes it very difficult for the television market to reflect the preferences of ' viewers; and (3) the market has failed to deliver on consumers' desires or even satisfy advertisers.

A. CULTURAL-DEMOCRATIC REASONS

The effect of advertising on culture has long been recognized. As early as 1934, James Rorty wrote that advertising represents "Our Master's Voice"-the voice of the wealthy producer.118 Advertising works to persuade people that their interests are aligned with those of the privileged, discouraging dissent and social activism. In 1964, scholars Paul Baran and Paul Sweezy said advertising "helps to shatter and ultimately destroy our most precious non-material possessions: the confidence in the existence of meaningful purposes of human activity and respect for the integrity of man."119 Beneath I detail some of the worst effects of advertising.

1. Advertising's Effect on Content

Television has always been thought to have some obligations to the public, particularly "to inform and educate."120 But advertising, which pays for most of the shows on television, distorts television programming in two ways. Negatively, it forces certain issues or methods of presentation off the air, not because they have failed in any "marketplace of ideas," but because they do not suit advertisers' commercial needs. Positively, advertisers force the production of programming content and method designed to serve their needs. The problem is not that advertisers' messages are inherently unworthy; rather, it is that such programming purports to be presented for its entertainment or informational value, but is actually presented for its commercial value.