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Congress, Administration Get Near-Failing Grades for Protecting First AmendmentCommercial Speech Fares Poorly with PolicymakersBy Richard T. Kaplar |
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If you think the government is doing a good job of protecting the First
Amendment, you're in for a big surprise.
A report released Jan. 13 by The Media Institute gives the Administration and Congress near-failing grades for their efforts in 1996 at supporting the First Amendment in general and commercial speech in particular. The report gives the Executive Branch a "D" and the Legislative Branch a "D+" on commercial speech issues. The courts fared substantially better, earning a "B." The First Amendment and the Media -- 1997 looks at 27 separate government actions in 1996 that will affect press freedom in 1997. The report covers four major categories: commercial speech; on-line issues; broadcasting and cable TV; and libel law / punitive damages / prior restraint. The government's performance on commercial speech closely mirrored its generally dismal showing across the board. For all four categories, the Executive Branch rated a "D+," the Legislative Branch a "D," and the Judicial Branch a "B- ."
For commercial speech, the Executive Branch's "D" largely reflects the Food and Drug Administration's sweeping restrictions on tobacco advertising adopted last August with the blessing of President Clinton." |
44 Liquormart, Inc. v. Rhode Island. Anheuser-Busch, Inc. v. Schmoke and Penn. Advertising v. Schmoke. Greater New Orleans Broadcasting Ass'n, Inc. v. United States. |
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Those restrictions would limit much advertising to a black-and-white
"tombstone" format, ban tobacco billboards near schools and playgrounds, ban
brand-name sponsorship of sporting events, and ban logos and brand names on
caps, shirts, and other promotional items.
The Federal Communications Commission and the Federal Trade Commission also contributed to the low grade because of their growing interest in scrutinizing and possibly restricting liquor advertising on television.
None of these measures was enacted, but most were expected to be reintroduced in the new Congress. Relatively speaking, commercial speech enjoyed a banner year in the courts. The high point was the Supreme Court's May decision in 44 Liquormart, Inc. v. Rhode Island, in which the Court articulated strong support for commercial speech. The Judicial Branch grade was tempered, however, by Fourth Circuit decisions in a pair of billboard cases on remand that ignored 44 Liquormart, and a Fifth Circuit opinion that upheld restrictions on casino advertising. In addition, the report notes two disturbing trends that threaten the First Amendment and commercial speech:
The report's 27 chapters were written by 12 communications and constitututional authorities, many of whom are members of The Media Institute's First Amendment Advisory Council. The First Amendment and the Media -- 1997 concludes that 1996 was a year in which commercial speech developments were "consistently inconsistent." What's in store for 1997? "The political branches of government have shown no sign of relenting in their campaign against freedom of speech," the report states. "In the courts, key decisions are working their way through the appellate process. The future of the First Amendment hangs in the balance." |
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The grades
were issued by The Media Institute's First Amendment Advisory Council. The
14-member Council, chaired by Robert Corn-Revere of Hogan & Hartson in
Washington, D.C., is composed of communications attorneys, constitutional
scholars, and First Amendment authorities.
Congress's myriad attempts to restrict advertising of selected products earned a
"D+" for commercial speech. Legislators entertained at least four bills to restrict
tobacco advertising. Meanwhile, Rep. Joseph P. Kennedy II (D-Mass.) introduced
a bill to ban liquor ads on TV, and a comprehensive bill that would severely
restrict alcohol advertising and end its tax deductibility.