Commercial Advertising: A Threatened Human Right? (1991), by Sean Gabb

Commercial Advertising: A Threatened Human Right?
Sean Gabb

Note: I wrote this in 1991 for publication by the Campaign against Censorship. However, it got so hopelessly caught in the bureaucratic machinery of CAC, that it was never, so far as I can tell, published.

This is a shame, as I am rather proud of the piece. It makes an uncompromising case for the widest freedom of commercial speech, denying the usual arguments that this is somehow different from other forms of speech and so more open to control by the authorities. Though now rather old, I think it still makes a contribution to the debate on freedom of speech.


Contents

Introduction
I: The Attack on Advertising
i: The Health Activists
ii: The Feminists and Others
iii: The European Community
II: In Defence of Advertising
i: Freedom of Speech
ii: Whether Correct
iii: Whether False
iv: Whether Advertising Qualifies as Speech
v: J.S. Mill’s Ambiguity
vi: The American Courts
vii: No Reasonable Distinction
viii: No Unique Pecuniary Motive to Advertising
ix: A Practical Case for Admitting Some Advertising as Speech
x: Adverts Allow Other Forms of Speech
xi: Other Defences
Wider Consequences of Censorship
Overestimated Power of Advertising
The Economic Value of Advertising
Entrenchment of Oligopoly
Intolerance as Folly of the Weak
III: Conclusion
Notes

Introduction

Advertising has long been regarded with a certain contempt in England. Those who get their money by it may not have been classed so low as pornographers and writers of begging letters. They have nonetheless been despised. In the eighteenth century, they were already unpopular enough to be satirised. Sheridan brought few characters onto the stage so grotesque as the cynical copywriter, Puff. He introduces himself:

…I love to be frank on the subject, and to advertise my self viva voce.—I am, sir, a practitioner in panegyric, or, to speak more plainly, a professor of the art of puffing, at your service—or anyone else’s.[1]

In the next century, Macaulay began one of his reviews with an attack on the advertising of books:

…[H]ow any man who has the least self-respect, the least regard for his own personal dignity, can condescend to persecute the public with this Rag-fair importunity, we do not understand. Extreme poverty may, indeed, in some degree, be an excuse for stealing a leg of mutton. But we really think that a man of spirit and delicacy would quite as soon satisfy his wants in the one way as in the other.[2]

In our own century, advertising has grown into an enormous business. The old individual puffer has vanished, his place taken by agencies that are often household names throughout the world. They employ thousands. Their products are seen by millions and tens of millions. But the old prejudice continues. Advertisers are still blamed for their alleged venality. Every sign, real or imagined, of their philistine ignorance is held up for the public derision. Would the Saatchi brothers, for example, ever have found their way into Private Eye had they made their fortunes in chemicals or house building?

The prejudice continues—with an addition. There are people nowadays whose dislike of advertising does not end with their sneering at it. They want to control it. They believe that, so far from being a vulgar annoyance, it has a malign and often unperceived power over us that must be fought and overcome if we are to regain the direction of our own lives. All advertising they would see regulated by the authorities. Some they would see entirely banned.

Now, I propose here to examine what is implied in this regulation of advertising—from what view of human nature its proceeds; what further policies it may require. If I concentrate on the health activists to the relative exclusion of other groups in favour of regulation, it will not be on account of any specific personal or financial interest. It will, indeed, be paying them a deserved compliment. They are by far the most able and articulate enemies of unregulated advertising. Their arguments have been clearly stated to the public, and have been endorsed by many leading members of the medical profession. In consequence, they have been the most successful. They have been taken more seriously by the political class than any other group. They seem much fairer set to having their way.

Again, if within the health activists, I give more attention to the anti-tobacco than to the anti-sugar or anti-pesticide lobbies, that also is because of its greater success to date. I will, of course, mention those feminists and others whose voices are from time to time raised against advertising. But their obscurity, their incoherence, their internal divisions, and their lack of practical success will surely excuse my not giving them the same attention as the health activists.

I: The Attack on Advertising

i: The Health Activists

The health activists share with the health educators—and indeed with most people—a very laudable wish. This is that we should all live as long as possible and remain as healthy as possible. They have firm ideas about what lifestyle is most appropriate for realising these goals, and have devoted their careers—often at large, and increasing, public expense—to persuading us to adopt that lifestyle. They want us to give up smoking, to drink less, and to change our diet.

On the whole, we have accepted their advice. Fewer cigarettes are smoked now than 15 years ago. Less alcohol is drunk.[3] More fibre is eaten, together with less fat and salt and sugar. But persuasion, much as it has achieved, is not enough. The health educators may be content to continue persuading us, trying to refute the objections raised against their advice, warning us against the temptations offered by those with a financial or some other interest in keeping us or bringing us back to the slovenly habits of our parents and grandparents. The health activists are less modest. They want to enlist the coercive power of the State to propagating their message.

In 1988, a book appeared that can reasonably be regarded as a comprehensive statement of the activist orthodoxy. It was compiled by “an Independent Multidisciplinary Committee” on which every main activist lobby is represented. It was sponsored by the main bodies that dispense public funds to them.[4] Its authors accept that continued free persuasion has its place. But, they say,

[i]t is also increasingly being recognised that human behaviour does not reflect individual choices alone so much as the powerful influence of the social, economic and political environments that lie substantially beyond the control of the individuals who are affected by them.[5]

There is a case, as they see it, for having the State guide us in our choices. It is to increase the taxes on tobacco and alcohol and whatever foods are currently thought bad for us, until we buy less of them. It is to subsidise more acceptable alternatives.[6] “[t]he provision of a wider variety of cheap non-alcoholic drinks (which at present are often overpriced)”. It is to regulate methods of manufacture. It is to give much more money to the health activists. At the same time, it is to take and use sweeping powers to suppress those adverts that are deemed to promote an unhealthy lifestyle. This last is particularly important, for

human societies are often manipulated by some individuals to the risk of others. It is one of the functions of government to regulate such manipulation in both the best interests of collectivity and of its individual members.[7]

Food and drink adverts are merely to be regulated. There is to be less advertising of sweets, and less “misleading” persuasion of women to beautify themselves by cutting down on starchy foods.[8] For drink, there is to be a strict code, to prevent the making of any association of alcohol with “glamour or sexual prowess”.[9] There is, in addition, to be a kind of negative advertising. At the moment, the food and drink manufacturers are able to tell us how good something will make us feel or look. They are not required to put us off buying it by telling us what it contains. This is to be remedied thus:

The Ministry of Agriculture, Fisheries and Foods (MAFF) should implement a comprehensive food labelling system which clearly informs the consumer of the fat (saturated and unsaturated), sugar, fibre and salt content of all foods. A simple ‘traffic lights’ system of identifying foods that are high, medium or low in the above substances should be adopted.[10]

Similar requirements are imposed at the moment on the cigarette manufacturers. They are compelled to put us off their products by printing the most alarming warnings on the wrappers and adverts. In spite of this, though, there is to be no tobacco advertising. That is to be prohibited by law. It may be suitable with other things to “promote healthy, safe and enjoyable patterns of use or consumption”.[11] But tobacco is unique. Cigarettes, says Nigel Smith of the Health Education Authority, are

the only product on the market in this country which kill people if they are used in the way the manufacturer intends. One in four people who regularly use cigarettes are going to die from a disease caused by their smoking….

Advertising the product creates a climate in which smoking, in which tobacco seems to be respectable. It gives it an air of credibility which it should not have….

[I]t’s absolutely essential that in Britain there is a total ban of all advertising, all promotion, all sponsorship, not just of cigarettes but of any product which bears the image or bears the name of a cigarette.[12]

The State raises more than £6000 million each year—or about three per cent of its total revenue—from the tobacco industry in excise duties and value added tax. Even so, it would be surprising if these bitter denunciations had been wholly ineffective. Since, it has been illegal to advertise cigarettes on television. In 1970, while Sir Keith Joseph was Minister of Health, the first of the “voluntary agreements” was signed between his Ministry and the tobacco industry. These were intended to regulate advertising without the need for actual legislation. Periodically renewed and amended, they have continued ever since. The latest version, due to expire in the September of 1991—when it will be replaced by something still more stringent—contains the following new provisions:

  • That the advertising of cigarettes in cinemas should cease;
  • That in place of the old health warnings, there should be six new warnings, to alternate and be ascribed to the Health Department’s Chief Medical Officers;
  • That the space provided for health warnings and tar ratings on posters and press advertisements should be increased from 15 per cent to 17.5 per cent of the available area;[13]
  • That spending on poster advertising should be frozen in real terms at 50 per cent of that for the year ending the 31st of March 1980;
  • That no cigarette yielding more than 18mg of tar should be advertised.
  • That no cigarette advertisements should appear in any magazine with a female readership of more than 200,000, of whom a third of more were aged between 15 and 24.[14]

But these agreements have always been denounced by the health activists as substitutes for real action. David Pollock, the Director of Action on Smoking and Health (ASH)—a charity set up in 1971 by the Royal College of Physicians, but now largely financed by the taxpayer—is predictably scornful:

So long as the Government continues to rely on cosy agreements with the tobacco industry, they will condemn hundreds of thousands of British men and women to disease and early death.[15]

During the past few years, for all the zeal shown by individual Ministers, hopes of having the British Government do anything really effective have been abandoned. Since the passing of the Single European Act in 1986, hope has been largely transferred from London to Brussels. Before dealing with their success there, however, I turn first to the feminists and other groups demanding the regulation of advertising.

ii: The Feminists and Others

To be sure, not all feminists are against advertising—or, indeed, call for more than the just legal equality of women. These have my total support and admiration. But there are certain feminists who go further, and seek liberation in some vague collectivist utopia. These regard the use of attractive women in adverts as part of the “patriarchal hegemonic discourse” which they must smash before they can be truly liberated. For them, advertising “commodifies” the female body, denying women their status as human beings. It constructs images

purely from a male viewpoint, reinforcing the already unequal power relationship between men and women in society and simultaneously producing norms for women to aspire to. Much of the gratuitous use of the female body in advertising suggests that all women are available anytime to men.[16]

Advertising is said also to help keep women in their place. According to Naomi Wolf, the political and economic gains of the past generation are checked by keeping women hungry. Emancipation has been frozen by the cult of thinness. Recommended body weights have been reduced for women. Conformity to these is encouraged by the continual association in the media—and especially in adverts—of beauty with what would have passed among our ancestors as the middle stages of malnutrition. They go on perpetual diets, their minds taken up with calorie-counting, their bodies made feeble by hunger. “Dieting”, says Wolf,

is the most potent political sedative in women’s history…. [C]oncern with weight leads to a virtual collapse of self-esteem and sense of effectiveness”.[17]

It must be confronted and rejected. Control of advertising is one means to this end.

After the feminists come certain homosexuals who feel oppressed every time they see an advert showing a married couple. There is the ecological movement, opposing all advertising that promotes the use of non-renewable resources. There are various moral conservatives and national socialists, crying out against the promotion of allegedly immoral products or relationships.

So far, these groups have achieved nothing in the way of regulation. But it requires only a change of government for some of their views to become rather more important than they have been during the past twelve years of Conservative rule. Alternatively, like the health activists, they can look expectantly to Brussels.

iii: The European Community

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I come now to the European Community, increasingly regarded as a deus ex machina by every group, liberal or collectivist, that cannot get its way at home. Except insofar as its members are directly influenced by the health activists or other campaigners, the European Commission is not opposed to advertising. Its chief end in this as in every other matter is the creation of a single market, the means to this being the harmonising of rules and standards. No member state must be more liberal than another, nor more restrictive. There must be a common protection of copyright and patents, common weights and measures, common levels of taxation. Everything, so far as possible, must be the same throughout the Community. Its controls, both actual and proposed, on advertising are a theoretical average of those already in force within the member states: each government must reduce or extend its controls until the common average is reached.

Where the weight of taxes on alcohol and tobacco is concerned, harmonisation will be for the British public a decidedly liberal measure. It will bring big reductions of prices. But for advertising, it will be restrictive. The governments of the other member states do more to control advertising than our own currently does. They have been more heavily influenced by the various pressure groups. Therefore, to reach the theoretical common average, our own controls will need to be increased.

There are two European laws already in place. More have been proposed.

First, there is the Cross-Frontier Broadcasting Directive, adopted by the Council of Ministers in the October of 1989. This is to some extent a liberalising measure. It allows free transmission from any one member state throughout all the others. So long as broadcasting within that member state is governed by the Directive, no controls can be imposed on the reception of its transmissions for any reason but the protection of morals. It also allows comparative advertising—that is attacks on the quality goods or services of a rival supplier compared with one’s own—this not currently being permitted in the British electronic media.

In all else, though, the Directive restricts British advertising. It limits the amount of time per day given by any broadcaster to advertising to no more than 15 per cent of total transmission time. It bans the advertising of all tobacco products, both direct and indirect. It bans the advertising of prescription medicines and treatments. It allows the advertising of alcohol, but only subject to the kind of restrictions described above.

Second, there is the Misleading Advertising Directive, adopted in 1984. This bans all advertising claims that are not strictly true. For example, another name must be given to Scotch eggs if they are not made in Scotland; and to French bread baked anywhere but in France. Prawn cocktail flavoured crisps cannot be sold if they are found to taste of something else.

There is a proposed Directive to ban false advertising claims about the quality and other characteristics of food; another to restrict the advertising of branded pharmaceuticals; another to ban the advertising of financial services.

Then, on the 15th of May, 1991, a proposed Draft Directive was agreed by the Commission, to ban the advertising and promotion of all tobacco products throughout the Community. An exception would be made for adverts placed inside tobacconists’ shops. Otherwise, the ban would be total. No newspaper or magazine could go on sale if it carried adverts for tobacco products. Publications from outside the Community would also be banned if found to contain tobacco adverts. Mrs Vasso Papandreou, the Commissioner responsible for this proposal, announced that it would cover every kind of visual representation, “down to the overalls of Formula One drivers”.[18]

This Draft Directive was successfully opposed by the British Government, claiming that its own voluntary system of regulation was already enough. We can be sure, however, that it will be proposed again. Of course, although strongly supported by the various Community health lobbies, it has less to do with the medical case against tobacco than with the alleged need for harmonisation. In France, Spain, Italy, Belgium and Portugal, tobacco advertising is banned. Therefore, the ban must be made common to the whole Community. If it were banned in only one member state, the Commission might well be pressing for liberalisation—as was the case recently in Greece, where the government was ordered to lift a ban on the advertising of children’s toys.

Whatever it finally does with regard to the advertising of tobacco, the Community is not expected to alter the £650 million subsidy paid each year to tobacco farmers through the Common Agricultural Policy.[19] That is a wholly separate matter.

II: In Defence of Advertising

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Though I mention them, as measures welcomed or indirectly prompted by the enemies of advertising, any full discussion of these Community regulations falls outside the scope of my current enquiry. Their immediate cause is the belief that harmonisation is most effectively achieved by administrative decree rather than free competition. I am inclined to doubt this. My own view is that the Community’s best future lies as a union of sovereign states—extending far beyond its present twelve members—united by a common adherence to the ideals of free enterprise, democracy and the rule of law. On this view, there is no need for the vast flood of regulations now pouring out of Brussels. The Commission’s only proper function is to resolve economic disputes between the member states, and to represent the Community in trade discussions with other nations or groups of nations. This, however, is part of the debate on federalism, and belongs to another pamphlet.

By all means, what I have to say concerning the regulation of advertising applies as much to Community regulation as to any other. But my real argument is with the health activists and similar groups. Their attack on advertising is purely an attack on freedom of speech. There is no distracting justification from them on the grounds of administrative convenience or relatively liberal harmonisation. For them, the attack on advertising is a direct and necessary attack on one of those core principles that have raised Western civilisation to its present ascendency, and which the provinces and satellite states of the former Soviet Empire are now struggling so hard to embrace.

i: Freedom of Speech

The case against censorship is simply put. While the public order may sometimes require controls on certain types of its expression, no opinion is ever to be suppressed. That opinion may be absurd. It may be grossly offensive. It may recommend the most dangerous or alarming things. But this is of no importance. Freedom of speech, for all its apparent disadvantages, is the means by which all other freedoms are protected. Take that away, or seriously abridge it, and all else may and will also be taken.

To give an extreme example, would the National Socialists have found it so easy to murder nine million non-combatant prisoners had the deportations and gassings been freely reported in the German media? Would the Hitler régime have lasted even beyond 1938 had its actions been known and openly discussed in Germany?

To give a milder example, our own country is by international standards a model of democracy and constitutional freedom. But its system of government is not without fault. The police are sometimes corrupt and partial, the courts sometimes idle or incompetent in the sifting of evidence. Wrong convictions are occasionally made, and the authorities have every interest in not confessing to their mistake. There are instances where public funds are wasted or embezzled; or where the whole weight of bureaucracy comes wrongly down onto the individual, and the law gives no easy redress. There is no malevolence at work in our system to compare with that of the old Soviet and South African systems. But we are ruled by human beings, and they would need to be saints if they never misused their power. What keeps them to the path of right and justice is the force of public opinion, directed and expressed by a vigilant free press. Muzzle that, and not all the democratic and legal machinery that human ingenuity can devise would be so effective on our behalf.

But this is a negative case, stressing the defence of what is already possessed. It is supplemented by the positive case—that to suppress an opinion is to place a check on the progress of humanity. There are two parts to this.

ii: Whether Correct

First, an opinion may be correct, and this in spite of all appearances to the contrary. I doubt if there is one person reading these words who has not in the past believed with utter certainty in something that later turned out to be a falsehood. The most casual knowledge of history gives instances of truths laughed at and their discoverers persecuted. Galileo when a feeble old man, going blind, was led round an Inquisition torture chamber, and had explained to him how its instruments would be used against him—unless he would “freely” retract the damnable heresy of asserting that the Earth was in orbit about the Sun. The German National Socialists drove physicists into exile or idleness for refusing to denounce the “Jewish” myth of the interchangeability of energy and matter. The Soviet Socialists were less considerate: they simply killed those biologists who denied the Lysenkoist claim, that acquired characteristics were transmissible to the next generation. Everyone knows how the Roman Church made itself a laughing stock well into the nineteenth century for its defence of the Ptolemaic cosmology. The Germans lost the race to develop the first atom bomb. Soviet agriculture must have lost somewhat by the twenty year rejection of Mendelian genetics—though, set beside the losses brought by collectivisation and the mass-murder of peasants, it would be hard to assess any further losses even had salt been used for fertiliser. But this is to digress. So far as the truth is worth knowing—and it always is to someone—we lose by its suppression.

iii: Whether False

Second, even if shown to be wrong beyond all reasonable doubt, to suppress an opinion is to deprive us of what John Stuart Mill calls “almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error”[20]. Protect the most solidly based truth with penal laws, and faith in it will insensibly wither.

Take, for example, the case of Dr Immanuel Velikovsky. His most famous work, Worlds in Collision, published in 1950,[21] is part nonsense, part lies. It upholds the literal truth of the miracles described in the Old Testament by assuming a mass of astronomical disturbances. Some time around 1500 BC, a giant comet is supposed to have detached itself from Jupiter and come close to the Earth on two occasions before crashing into Venus. On its first encounter, it either stopped or slowed down the rotation of our planet for a while, so causing the parting of the Red Sea and the other unusual events recorded in the book of Exodus. On its second, it made the walls of Jericho fall down, and the Sun appear to stand still in the sky as requested by Joshua during his battle with the Amorites. Then, around 700 BC, Mars is supposed to have strayed from its orbit, coming close to the Earth just in time to destroy Sennacherib’s army—though without harming the walls of Jerusalem—and fulfill sundry prophecies made by Amos, Isaiah and others.

How anyone could have read this with a straight face, let alone have believed any of it, defeats me. Yet the book was an international best-seller. Whether ignorant of science or destitute of common sense, many reviewers heaped the most lavish praise on it. John O’Neill, the science editor of The New York Herald Tribune, called it “a magnificent piece of scholarly research”. Ted Thackrey, editor of The New York Compass, suggested that what Velikovsky had discovered might “well rank him in contemporary and future history with Galileo, Newton, Planck, Kepler, Darwin, Einstein…”.[22]

The scientists were outraged. Many wrote to the publisher, threatening to boycott its scientific texts. Some of the writers of those texts threatened to write in future for other publishers. Eventually, the publication rights were turned over to another house, and the associate editor who had first realised the book’s potential was sacked. The response to Velikovsky, said Eric Larabee, the editor of Harper’s magazine, was a “disgrace to American science”. He was shocked at the lack of faith shown by the scientists in the “open testing of ideas”.[23]

But here the persecution had to end. Its publishers could be punished: the book itself could not be suppressed, but had to be refuted point by point. For the next few years, it had to be pointed out—that planets are not known to wander in and out of their orbits; that even a gentle slowing of the Earth’s rotation would have produced a universal catastrophe with effects still plainly to be seen.

Destroying Velikovsky’s reputation may have been an annoyingly long task. It may have seemed a waste of time set against all the other exciting developments of the 1950s. Even so, it was more fruitful than suppression. No one who followed the controversy could fail to learn something of physics and astronomy. Many who had accepted what they had learned at school with a languid assent were now set thinking for themselves, and emerged with a firmer apprehension of the truth. The final effects of the controversy were beneficial to the progress of science. As Charles Darwin had written a century before,

[f]alse facts are highly injurious to the progress of science, for they often endure long; but false views, if supported by some evidence, do little harm, for everyone takes a salutary pleasure in proving their falseness; and when this is done, one path toward error is closed and the road to truth is often at the same time opened.[24]

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Suppose, however, the conventional physics and astronomy had been dogmas as firmly established in America as Lysenkoism then was throughout the Soviet Empire; suppose the more authoritarian scientists had been given their way, and Velikovsky’s book had been withdrawn, and he forbidden to continue his research and to publish anything further—what then? Why, it would have been presumed by the great majority that the truth lay with him who was suffering. Little regard would have been given thereafter to views that, however plausibly presented, with whatever apparent weight of supporting evidence, could not stand alone, but had to be upheld by the coercive authority of the law. Everyone might have taken some interest in the Velikovsky thesis, passed on by word of mouth or in samizdat editions: no one might so much as listened to the official refutations.

If, therefore, we desire the benefits of progress, we must leave opinions alone. We must leave people free to seek out and announce whatever they think to be truth of any matter. We must be like the gold-panners, who for the occasional quarter ounce of gold must wash endless tons of rubbish through their sieves. We must tolerate all the nonsense that comes off the printing press and over the airwaves—flat-earthism, creationism, socialism, protectionism, satanic child-abuse scares, and so on without limit. We must seek an answer to these not in censorship but in the greater, if often less rapid, power of unarmed truth.

iv: Whether Advertising Qualifies as Speech

The enemies of advertising seldom reply to these arguments. Instead, they dismiss them as not applying to the case in hand, or they give freedom of speech a definition all their own. Thus David Simpson, the former Director of ASH, once wrote to various newspapers, demanding that they should stop publishing replies to his own arguments. Describing these replies as “misrepresentations” and “quotations out of context”, he asked that

editors should seriously question whether it is really in their readers’ interests even to publish the propaganda of the tobacco lobby.[25]

In an earlier letter, he had declared that

[t]o publish letters from these wretched people is a somewhat perverted extension of the concept of free speech.[26]

Since even the expression of views with which Mr Simpson disagrees is not allowed to pass as free speech, I can understand his unwillingness to consider any case for the right to advertise.

I turn, however, to the more respectable argument against regarding advertising as speech. It is claimed that some distinction exists ordinary and commercial speech, and that only the former ought to be protected. This strikes me as an odd distinction. Take the following: “My vitamin C injections are good for you”; “Jesus died for mankind”; “Political power, properly so called, is merely the organised power of one class for oppressing another”. Though what they claim is different, these statements are of exactly the same type. Each makes a factual assertion, implicitly urging a certain course of action. Each can be supported or rejected by arguments of varying force. Suppressing any is an attack on the free communication of ideas. Professor Burt Newborne, former National Legal Director of the American Civil Liberties Union, agrees. He believes that

[b]anning speech about lawful choices—whether economic or political—treats people like rats in a laboratory maze. Seeking to guide behaviour patterns that seem “wiser” to the elite and rationing the flow of public information, is an Orwellian process that has no place in our system of political and economic democracy.[27]

Yet a distinction is made. The most popular currently is based on motive. Preachers and politicians seek to persuade, we are told—advertisers only to make money. So Caspar Henderson, writing in the otherwise admirable Index on Censorship: “Before anything else advertisements are made to persuade people to buy things”.[28] Therefore, whatever their apparent form, they cannot be speech. Bring in the profit motive, he seems to believe, and a censorship that he might elsewhere condemn, becomes justifiable regulation.

v: J.S. Mill’s Ambiguity

This is a principle that appears to have been accepted by Mill. His distinction between “self-regarding” and “other-regarding” acts—a distinction seized on by every one of his critics, from James Fitzjames Stephen all the way down to Mary Whitehouse—lets him proceed to the conclusion that

…trade is a social act. Whoever undertakes to sell any description of goods to the public, does what affects the interest of other persons, and of society in general; and thus his conduct, in principle, comes within the jurisdiction of society…. [T]he… doctrine of Free Trade… rests on grounds different from, though equally solid with, the principle of individual liberty asserted in this Essay.[29]

This in turn lets him flirt with socialism without having to admit its incompatibility with freedom in the liberal sense. The flirtation, though, is not wholly safe, for it leaves his doctrine of absolute freedom of speech open to attack. If I incite or procure you to commit a murder, I can be punished as a principal to the act. There is no difficulty here, and Mill admits none. But suppose I persuade you to drink yourself into alcoholism. You ought not to be punished, for you are harming only yourself. Ought I to be punished, for having advised you to harm yourself? No, he says, for that is a self-regarding act:

If people must be allowed, in whatever concerns only themselves, to act as seems best to themselves, at their own peril, they must equally be free to consult with one another about what is fit to be so done; to exchange opinions, and give and receive suggestions. Whatever it is permitted to do, it must be permitted to advise to do.[30]

But suppose I am a publican, or have some other financial interest in the sale of alcoholic beverages—does this defence cover advertising? That is an activity intimately connected with trade, and “trade is a social act”. Mill continues, with evident perplexity:

The question is doubtful only when the instigator derives a personal benefit from his advice; when he makes it his occupation, for subsistence or pecuniary gain, to promote what society and the State consider to be an evil. Then, indeed, a new element of complication is introduced; namely, the existence of classes of persons with an interest opposed to what is considered as the public weal and whose mode of living is grounded on the conteraction of it. Ought this to be interfered with, or not?[31]

He devotes a page and a half to equivocation, giving no clear answer is. He plainly hates the thought on any limitation on his arguments for freedom of speech, but also wants to leave the way open to some public control of economic activity. But, whatever Mill may have thought of advertising, his chosen distinction between acts has allowed a potential distinction between kinds of speech that can be exploited by anyone who cares to read him.[32]

vi: The American Courts

The principle has also been accepted, if only partially, by the American courts. Speech is protected by the First Amendment to the Constitution of the United States:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

A liberal construction has allowed the widest freedom of expression. Publications that here would pass furtively from hand to hand are openly sold in America. But commercial speech lies partly outside this protection. In a recent case, for example, the Federal Trade Commission prosecuted the R.J. Reynolds Tobacco Co. Inc. for having run a false and misleading advert in the press. The Company had disputed certain claims made about the connection between smoking and heart disease. The Company won—but only because its advert had not mentioned any prices or brand names. As such, it constituted “speech”, and was held to be exempt from regulation no matter how false. But the mention of a price or brand name might, all else remaining unchanged, have degraded it to a common advert, fit for regulation in the public interest.[33]

vii: No Reasonable Distinction

Nevertheless, this distinction, between ordinary and commercial speech, is at best groundless. It follows from the premise, that love of money is a more wicked motive for lying than any other. It lets me lie my head off to get people into church or a trade union. I can talk about my conversations with God, or how splendidly the workers live in some distant country where no foreign journalists are allowed. All this is speech. I have a right to say it. Anyone who tries to silence me will earn—and deserve—the full blast of liberal outrage. But let me just hint that my vitamin C injections—only £19.99 each—will make people better in bed, and the cry will go up for action against me, with scarcely a word said in my favour. That is not speech, but vulgar advertising.

Yet a motive is good or bad only in proportion to its likely effects. I have no doubt that certain companies do rather well from the promotion of dangerous or disagreeable lifestyles. But, unless we are to regard profit as an absolute evil, every attack on advertising, made on the grounds described, applies vastly more to the advocates of Christianity and Communism. Jesus may well have died for us. To be sure, millions, and perhaps tens of millions, have been killed in his name. The Marxists have tried repeatedly since 1917 to build a road to their classless utopia. Every time, that road has led nowhere. Every time, it has been paved with corpses. I am not arguing for the suppression of the Bible or the works of Karl Marx. But, if we are to distinguish statements according to the motives behind their utterance, why ever pick on advertising? We might as reasonably run about turning off the bath taps on a sinking ship.

viii: No Unique Pecuniary Motive to Advertising

Of course, it may be that I have missed the point—that pecuniary motives are uniquely impure regardless of their consequences. But, assuming this were true, it could only be used against advertising by those of its enemies who give their time to the battle free of charge. The feminists and others who go about denouncing advertising as intellectual prostitution may deserve to be answered directly. Many of the health activists, though, who sneer at paid advocacy ought first to explain their own motives. For, “[t]he anti-smoking movement,” says Peter L. Berger,

is no longer a little band of lonely zealots. Rather, the movement is large, well organized, and providing employment as well as status to sizeable numbers of people…. [It] is most strongly represented among the most educated segments of the upper middle class (segments sometimes designated as the New Class or the knowledge class—broadly speaking, the intelligentsia). This stratum has a collective interest in government as against the private sector because, compared with other segments of the middle class, it derives more of its income and status from government expenditures and government programs.[34]

Perhaps these salaried employees are passionately committed to the truth of what they are hired to propagate. But that still does not distinguish them from the copy writer who believes that Brand X really is a wonderful cigarette. It is dishonesty or stupidity to claim otherwise.

ix: A Practical Case for Admitting Some Advertising as Speech

However, so far as the health activist case is concerned, the best argument for free advertising is practical. That case has not been fully made out. We are being urged into a potentially dangerous course of restriction on the basis of an hypothesis that has yet to be demonstrated.

The health activist claims derive mostly from epidemiological research. Now, whatever its value in the past, epidemiology today is a largely redundant science. It is best suited to tracing the causes of an infectious disease. Antibiotics have brought these under control. During the last two generations, there has been a shortage of diseases in which its methods are likely to produce good results. In consequence, the epidemiologists have turned increasingly to the tracing of associations between the main degenerative illnesses—such as heart disease and the various cancers—and specific habits of personal characteristics.

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The problem here is that it is impossible to derive causal connections from associations. There are too many variable causes, both known and unknown, for any certain conclusions to be reached. When a new diseases is traced to its proper cause—by the appropriate laboratory research—the epidemiologists are generally found to have been wrong. For example, when the first cases of AIDS appeared in California, the epidemiologists applied all their usual methods to finding a cause. They looked at ethnic and religious background, at the amounts of alcohol and tobacco and other drugs consumed by the victims, at residential and occupational histories, at sexual habits. They found a strong association with the use of amyl nitrate, and suggested this as the cause of the disease. The association was very strong—as strong as that between cigarette smoking and lung cancer. As we know, AIDS is not caused by the use of amyl nitrate.[35]

When associations are turned into causal connections, one can usually find ignorance or dishonesty at work.

Look at the claims made regarding nutrition. According to the Report cited above,

The higher the level of cholesterol in the blood the greater the risk of heart disease….

There is good evidence that the amount of saturated fat (derived mostly from animal fats) in the diet is an important determinant of cholesterol levels.[36]

According to Dr James Le Fanu, “this thesis is plausible, but it leaks like a colander”.[37] The epidemiological research on which it is based is defective, he says. He refers to the famous cross-cultural study begun by Ancel Keys, in which the incidence of heart disease in various countries was correlated with the consumption of dairy produce. It was apparently shown how Japanese immigrants to America who adopted the high-fat diet of their new country also acquired a higher risk of heart disease. But it seems that no such correlation was shown where two similar countries were compared, nor when different groups of people within the same country were compared. Nor did the subsequent laboratory research ever show how fat consumption was causally related to cholesterol levels.

Le Fanu concludes that there is no proven link between the amount of fat eaten and the incidence of heart disease. The link is made in order to encourage us to the adoption of a diet that owes more to the cultural ideology of the nutritionists than to their scientific research. He condemns the various committees that make it their business to tell us otherwise:

In all their self-righteous admonitions to the public they appear blind to the serious consequences of their propaganda, that it misinforms the public about the complexity of disease, trivialises tragedy, blames patients for their illnesses, stigmatises the dairy industry and degrades medicine as a science-based profession.[38]

I am not saying that Le Fanu is right and the authors of the Report wrong. I am not qualified to judge. All I can tell is that Le Fanu is respected as a medical writer and an expert on heart disease. If he is willing so flatly to deny that animal fats are necessarily bad for the heart, I must doubt the assumption made in the Report, that this particular debate is now closed.

Look also at the claims made regarding tobacco. Many of these are at least exaggerated. So far as can be told, smokers do face a higher than average risk of lung cancer and heart disease. We can argue over the reasons why. But the evidence itself appears as certain as such evidence can be. Nevertheless, many other claims handed down to us as demonstrated truths appear to rest on nothing more than assertion. For the most alarming claim, that smokers can cause fatal illnesses in the non-smokers around them, there is no good evidence. Every so often, the world is presented with yet another “conclusive study”. Those published over the past generation have varied between the ambiguous and the dishonest. Having reviewed about a hundred of them, Peter N. Lee reports so many persistent misclassifications as to account for all the alleged associations between passive smoking and lung cancer. Its meaning plainly spelled out, none of the studies, he believes, has so far given anyone with so much as a trace of common sense the smallest grounds for worry.[39]

Uncertainty, I grant, is not in itself sufficient reason for not taking action. If it were, nothing would ever be done, good or bad. But we are dealing here with a set of claims that affect our very lives. We have the strongest reason possible for wanting to know the truth. That truth may have been discovered already by the health activists. But has not yet been finally established. In the meantime, it must be tested and refined by the fullest and most free public discussion. The people most likely to make or finance the opposing case are the manufacturers concerned. It might be desirable on this account if they were to confine themselves, like the R.J. Reynolds Tobacco Company, to the pure conveying of information, without the mentioning of brand names or prices or the use of the normal selling techniques. But human nature being what it is, some financial interest will need to be gratified if the case is to be made. Therefore, advertising must be not merely permitted, but encouraged—and all for the sake of our health.

Moreover, even granting that the current health orthodoxy were the proven truth, the advertising of unhealthy products or lifestyles would still be justified. Look at cigarette advertising. In an age where most smokers have paid some attention to the health warnings, they are predisposed to change to whatever brand can reasonably be claimed as safer. Thus, they will increasingly buy cigarettes with filters or better filters, and with lower stated tar contents. Where tobacco advertising is banned, these changes are delayed. It was banned in Norway in 1975. Filter sales there in 1982 accounted for 85 per cent of the cigarette market. In this country, where advertising is only regulated, they accounted for 94 per cent of the market.[40] Clearly, in this case, an advertising ban has prevented the free flow of information. It is no different from any other act of censorship. So far as knowledge about filter tips and low tar contents save lives, it is a worse act than many others.

x: Adverts Allow Other Forms of Speech

Finally, advertising, whatever its status as speech, whatever its effect on the health debate, is necessary for the maintenance of a free press. Its value to the British press was estimated in 1988 at £6,961 million.[41] This is a lot of money; but even its small diminution would be keenly felt. The quality dailies drew nearly 65 per cent of their total revenue from the sale of advertising space; the quality Sundays nearly 30 per cent. The loss of tobacco advertising alone—never mind alcohol, pharmaceuticals and financial services—would bring revenue losses of 0.26 per cent and 4.29 per cent respectively. Perhaps these are small losses. But, for an industry where profit margins are low, or even negative, they can still be expected to have a significant effect on profitability. Some papers might close. Others might reduce their coverage. There would be fewer articles of first rate quality, and fewer reviews of the arts and sciences. Since the popular papers earn more of their revenue from sales to the public, and tend to have higher profit margins, they would be less affected. The net effect, therefore, of a ban only on tobacco advertising would be to take the British press on the whole still further down market. The relative influence of the tabloid press on opinion—already widely condemned within the educated classes—would be increased.

xi: Other Defences

Nor is it only on the grounds of freedom of speech that advertising can be defended. There are other grounds. Consider:

Wider Consequences of Censorship

First, the enemies of advertising are often the enemies of all freedom. The ideology of the health lobby, for example, is a kind of national socialism. The authors of the Report cited above

believe that the health of its citizens is one of the most important resources needed by a nation for the pursuit of most other legitimate national objectives.[42]

Our bodies, on this reasoning, belong not to ourselves, but to the State. The very wording throughout much of the Report carries the reader back to Germany in the 1930s.[43] The only difference is that, then, the health lobby had no need for discretion. They openly attacked as a “liberal perversion” the view that one should have the right to dispose of his body as he saw fit—the Recht auf den eigenen Körper. They spoke instead of the “obligation to be healthy”—the Pflicht zur Gezundheit.[44] Since health was now an integral part of the German national interest, they argued, it could no longer be possible to tolerate substances damaging to society as a whole, whatever the wishes of those individuals consuming them.[45]

For these people, controls on advertising are no more than a prelude to controls on the availability of products. There is no doubt that they want to ban smoking. For the authors of the Report,

[t]he ultimate public health objective for cigarette smoking can be seen as the elimination of all but occasional cigarette smoking.[46]

According to Nigel Smith, “if tobacco was discovered tomorrow it would be banned”.[47] It is allowed only because it is too familiar for people to see it as it is. His task is to strip away the veil of antiquity, after which the appropriate action can be taken.

David Simpson is still more emphatic. Speaking in 1990 on television, he declared that

if cigarettes were invented today, there’s no way they’d be allowed to be made, never mind advertised or promoted in any other way…. No decent society would actually allow, willy nilly, the promotion of a product even a tenth as dangerous as cigarettes. So that’s why we want to ban them.[48]

It may be unfair to put a literal meaning on words spoken unscripted in a television studio. Mr Simpson may have intended “ban” to govern not “cigarettes” but “advertised” and “promoted”. Until he clarifies them, though, I will give his words their natural meaning. He is a prohibitionist.

We may disapprove of the advertising of products that are dangerous. But unless we also want the banning of the actual products, we must regard the calls for advertising bans as the thin end of a wedge.

Overestimated Power of Advertising

Second, there is no evidence that advertising bans achieve their desired end, of reducing consumption. The claims of the advertising industry have been taken at face value. Advertising is seen as an immensely powerful force for moulding opinion. Given the right approach and enough money, the belief seems to be, and Saatchi and Saatchi could create a market out of nothing for sugared cat mess. If only the advertisers could be silenced, the conclusion is, the market in unhealthy products would collapse.

This is an inflated view of advertising. It cannot create markets out of nothing. It cannot sustain them in decline. The history of advertising is littered with failed campaigns. 30 years ago, a new brand of cigarette, called Strand, was introduced. No amount of money could find it a place in the market. It was withdrawn. A few years earlier, in America, the Ford Motor Corporation had brought out the Edsel. Record sums were spent on its promotion. Again, it failed and was withdrawn. Think of quadrophonic gramophone records. Think of the Betamax format in this country. Think of moistened lavatory paper. Think of all the advertising money spent in vain to bolster the shrinking markets for Guiness and The Sun.

Neither can advertising bans can send a market into decline. Cigarette consumption has remained fairly constant in Norway since the 1975 advertising ban. Here, it has fallen by a quarter.[49] As for the effect on alcohol consumption, the advertising of whisky was banned in France in 1955. In that year, 157,000 proof gallons of whisky were imported. In 1979, 6,294,000 proof gallons were imported.[50]

The real purpose of most advertising is far more modest. It can establish or increase a supplier’s share in a market that already exists. This is plainly the intention of drink and cigarette advertising. The companies are not seeking to enlarge the total market. Instead, each is competing for a larger share of a market that is in most wealthy countries either stationary or in decline.

The Economic Value of Advertising

Third, if advertising has any wider function, it is to maintain the efficient working of a market economy. Here, I feel that I ought briefly to digress and review the case for markets. The basic fact of life is scarcity. We have infinite wants, but only limited resources. We must allocate these resources to produce the greatest possible return of consumer satisfaction. If we make so many pencils, we can only make so many television sets. If we devote so much effort to producing consumer goods, we can only devote so much to producing capital equipment. Going back to the pencils, how do we get the greatest use out of them for the minimum outlay of effort? Do we use cheaper graphite that wears out quickly, or harder wearing but more expensive graphite? Do we secure the rubbers to the ends with plastic, to make which requires oil, or with brass, that may have to be brought from the other side of the world? What abrasive do we mix in with the rubber—silver sand or pumice stone? These are important questions. Answer any of them wrong, and we must have fewer pencils or fewer televison sets.

The market economy tends to find the right answers. It does so because everything has a price that reflects its relative value. The entirety of human knowledge about cost is encoded in a vast structure of prices that reflects the subjective valuations of all economic goods at any one moment. The function of this structure is to express information in the briefest possible way about what goods are wanted, in what quantities, at what qualities, and by what means. These signals are responded to, or anticipated, by businessmen. The function of profit and loss is to show who is responding best.

I have just mentioned oil. Let us consider some of the effects of an increased demand for petrol. The first and most obvious will be a shortage at the pumps as the retailers sell out at the existing price. Next, faced with larger orders, the oil companies will put up their prices. Perhaps the supply of crude oil is fixed. More likely, it will cost more to bring further supplies to the market. In either case, prices will go up.

Now, oil is also used by the makers of paint and records, among many others. Faced with a rise in the cost of their main raw material, do these put up their prices or look for substitutes for oil? That depends on the technical options open to them and on the subjective valuations of their products. The paint makers might find stable or increasing demand in spite of higher prices. The record makers, on the other hand, might find it necessary to economise on oil. This in turn might lead the makers of substitutes to expand their activities, putting up the wages of their skilled workers, and improving business among the local estate agents by their sudden need for larger premises.

And it may persuade the pencil makers to switch from plastic to brass.

The responses to a single change in demand would continue throughout the entire economy, inducing further changes, great or small, without limit. To trace these responses years after the event, when all the information has been gathered to the centre, would perplex the cleverest statistician. To trace them at the time would be impossible. No one but a fool would ever try to predict them. Yet the encoding of information in prices allows every adjustment to be made—sometimes immediately, sometimes with a slight delay—and nearly always made by people who never understand the true need for making them.

Even in a state of pure equilibrium, a central planning authority would never be able to gather the smallest fraction of what is passed on by the price mechanism, let alone respond to it. In the real world, where the pattern of choices shifts from moment to moment, any attempt to do without the market must result in chaos. It must result in an orgy of waste. When no one knows what is relatively scarce, everything will be squandered in reckless profusion until it runs out. No one, very likely, will even what to buy the few goods that eventually get produced.

It is the general function of advertising to help in the co-ordination of economic activity. It is by advertising in all its forms that knowledge is made generally available to both producers and consumers. Without it, competition would suffer. Without that, we should suffer.

Entrenchment of Oligopoly

Fourth, and following on from the above, the tendency of advertising bans is often to preserve established firms from the competition of new entrants to a market. The tobacco companies claim to be alarmed at the prospect of not being able to advertise. Perhaps they are for the moment. But let them quietly agree among themselves how much market share each should have, and they would join in the call for a ban. That would freeze all effective competition. They would be unable to attract each other’s customers away. But they would also be secured from the risk of having their customers attracted away by any new entrant to the market. The various professional bodies made this discovery more than a century ago, and their members have benefitted ever since.

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Fifth, I sympathise with those minority groups which object to the ideological content of advertising. This does undoubtedly exist. The feminists and other radical “deconstructionists” are partly right: advertising does often go beyond the simple promotion of a product, to the promotion of whole lifestyles or ideologies. Recall a typical advert: A father and his young son come back filthy from some manly sport into a large and spotlessly clean kitchen. Does his wife throw a fit? Does she go upstairs and swallow a handful of valium? No, she smiles and waves a box of washing powder. Soon, the clothes are clean, ready to be soiled again. We have here the portrayal of enough sexual and economic stereotypes to have the average sociologist foaming at the mouth. The message is that women must be endlessly active and subservient to their menfolk; that a man must earn the sort of living that will let him afford a big house and a wife to run it for him; that boys must be toughened so that they too can survive in the marketplace when grown up. There is no hint of sexual non-conformity. Everyone is white. The parents are both about 35. If there is another child, it is a younger daughter, who stays by her mother and even helps with the housework.

The same method can be applied to almost any other advert. I remember one where a ruggedly handsome individualist could get service at a crowded bar simply by muttering “Cinzano”; another where a man, by smoking St Bruno in his pipe, became so attractive to women that he needed guards to keep them away; another where two barristers walk through the Law Courts, arguing whether or not the scantily dressed young woman ahead of them has used Silvikrin hair spray.

All this, I am certain, is deeply insulting to some people. But anyone who thinks it supremely powerful is showing no sense of proportion. Whoever claims that every man who enjoys the Flake advert is also learning that women like to be raped is a fool of the Millie Tant variety.

I might also add that no unpopular minority, unless it is also the governing elite, can afford to advocate censorship. It is a weapon that can be forged by anyone, but is used most often by the strong. Look again at the latest voluntary agreement with the tobacco companies. It was agreed that

no cigarette advertisements should appear in any magazine with a female readership of more than 200,000, of whom a third of more were aged between 15 and 24.

What is this but a gross insult to women? Do they need special protection of this kind? Girls of 15 may need protection—as may boys. But a woman of 18 is an adult. She has the vote. She can go into business on her own account. She can take on a mortgage. She can marry and divorce. She can be made bankrupt and be sent to prison. Had the men who drafted and signed this agreement forgotten these things? Or did they simply feel that, whatever changes of legal status have occurred during this century, they were still dealing with “little women”—inferior beings who ought to feel grateful for a firm, paternalist pat on the head? Or is it just another proof, to add to all the others, that power is used by the powerful?

III: Conclusion

I say, then, that advertising is a right that we allow to be breached only at our peril. It may be vulgar. It may tell lies. It may promote the wrong kind of views or lifestyles. But there are no means, logical or practical, by which it can be restricted except at costs that I regard as wholly unacceptable.

It will be said against me, I have no doubt, that I am simply arguing for the right of people who are already very wealthy to go on making money from the needless suffering of others—that I am using the great names and arguments of liberalism to defend the most sordid of motives. That, however, is an occupational hazard. Unless its enemies are able to mount a frontal assault, freedom of any kind is invariably attacked in its outermost extensions, in those places where it is often least convenient or productive of honour to fight in its defence. But it is there that the battle is won or lost. The ground is less stony and the banners flutter more bravely in the wind elsewhere on the field. But those who sit round their camp fires, boasting of how they will rout any attack on the right of the Conservative or Labour Parties to put their message across in The Guardian and The Daily Telegraph—they are simply announcing their intention to fight in some pathetic last stand, in which the battle will have been already lost, and in which they will be best advised for their own reputation with the victors to bury their useless weapons and creep out of sight.

I will defend the right to advertise no matter what is said against me, whether by friend or foe. I leave it to the reader to decide for his or herself whether I am sincere and whether the names and arguments used have been misused.

Notes

[1] Richard Brinsley Sheridan, The Critic: or a Tragedy Rehearsed (1779), Act I, Scene II. Puff continues:

Even the auctioneers now—the auctioneers, I say—though the rogues have lately got some credit for their language—not an article of merit theirs: take them out of their pulpits, and they are as dull as catalogues!—No, sir; ‘twas I first enriched their style—’twas I first taught them to crowd their advertisements with panegyrical superlatives, each epithet rising above the other, like the bidders in their own auction rooms! From me they learned to inlay their phraseology with variegated chips of exotic metaphor: by me too their inventive were called forth:‑ yes, sir, by me they were instructed to clothe ideal walls with gratuitous fruits—to insinuate obsequious rivulets into visionary groves—to teach courteous shrubs to nod their approbation of the grateful soil; or on emergencies to raise upstart oaks where their never had been an acorn; to create a delightful vicinage without the assistance of a neighbour; or to fix the temple of Hygeia in the fens of Lincolnshire! (ibid).

[2] Thomas Babington Macaulay, Essays, op. cit., review of Robert Montgomerey’s Poems (1830) Vol. 2, p. 647.

[3] Since this is routinely denied by the anti‑alcohol lobby, I refer the reader to M.J. Waterson, Advertising and Alcohol: A Review of the Evidence, in Digby Anderson (ed), Drinking to Your Health: The Allegations and the Evidence, The Social Affairs Unit, London, 1989, pp. 90‑117. Measuring consumption in litres of 100 per cent pure alcohol, we drank 9.44 litres per head in 1978, and 9.13 litres in 1987—p. 96. Compare this with the 13.2 litres per head drunk in France in 1986, and the 10.5 in West Germany—p. 99.

[4] Alweyn Smith & Bobbie Jacobson (eds.), The Nation’s Health: A Strategy for the 1990s: a Report from an Independent Multidisciplinary Committee Chaired by Professor Alweyn Smith, King Edward’s Hospital Fund for London, London, 1988. The Sponsors were: The Health Education Council (to April 1987), The Health Education Authority (from April 1987), King Edward’s Hospital Fund for London, The London School of Hygiene and Tropical Medicine, The Scottish Health Education Group.

[5] Ibid., p.2.

[6] Ibid, p. 83, p. 91. In the first of these, the authors are discussing food and the five “broad strategies” for changing our diet. There is to be a pricing policy “to assist in the switch from harmful to healthy food”.

[7] Ibid., p.4.

[8] Ibid, p. 85. See also infra, regarding the feminist claims.

[9] Ibid, p. 248.

[10] Ibid, pp. 243-44.

[11] Ibid, p. 77.

[12] British Satellite Broadcasting, 5 pm, 28th May 1990—from a studio debate, chaired by Jackie Spreckley, with Brendan Brady of the Tobacco Advisory Council.

[13] This had already risen under the previous Agreement from 10 per cent.

[14] Taken from Press Release 86/96, issued 24th March 1986 by the Department of Health and Social Security.

[15] “Smoking is cut” by bans on tobacco promotion, The Daily Telegraph, London, 6th September 1991.

[16] Rukshana Mosam, “Where Sex Adds Up”, Ms London, London, 8th May 1989.

[17] Naomi Wolf, “The Beauty Myth”, The Sunday Times, London, 9th September 1990. Her book, from which this article is condensed, I have not yet read.

[18] The Daily Telegraph, London, 16th May 1991.

[19] Ibid.

[20] Mill, On Liberty, op. cit., Chapter II, Of the Liberty of Thought and Discussion.

 See also Macaulay. Though undoubtedly a snob as regards advertising, he was a firm liberal when it came to a defence of speech in general. He says:

 Men are never so likely to settle a question as when they discuss it freely. A government can interfere in discussion only by making it less free than it would otherwise be. Men are most likely to form just opinions when they have no other wish than to know the truth, and are exempt from all influence, either of hope or fear. Government, as government, can bring nothing but the influence of hope and fears to support its doctrines. It carries on controversy, not with reasons, but with threats and bribes. If it employs reasons, it does so, not by virtue of any powers which belong to it as a government. Thus, instead of a contest argument and argument, we have a contest between argument and force. Instead of an argument in which truth, from the natural constitution of the human mind, has a decided advantage over falsehood, we have a contest in which truth can be victorious only by accident. (Review of Southey’s Colloquies (1829), in Essays, op. cit., Vol. 2, p. 209).

[21] Immanuel Velikovsky, Worlds in Collision, Macmillan, New York, 1950.

[22] Quoted in Martin Gardner, Fads and Fallacies in the Name of Science, Dover Publications, New York, 1957, p. 31.

[23] Quoted in ibid., p.323.

[24] Quoted in ibid., p.321.

[25] David Simpson,”Letter” The Droitwich Advertiser, 8th January 1987.

[26] Idem, “Letter”, The Doctor, 24th July 1986. In the same issue, the Editor replied as follows:

As a newspaper we respect all points of view, though not necessarily agreeing with them. If the time ever comes when we deny a reader the right to express a reasonable opinion merely because it opposes our own, expect a hammer and sickle to be part of our banner.

[27] Quoted from his Commentary: “Censorship Stifles Choice”, in Phillip Morris Magazine, May/June, 1990, p. 43.

[28] Index on Censorship, London vol. 20, no. 1 (January 1991), p. 4.

[29] Mill, On Liberty, op, cit., p. 150 (Chapter V, “Applications”).

[30] Ibid., p.154.

[31] Ibid.

[32] The reader will, of course, realise that Mill’s confusion over acts is logically distinct from his arguments regarding speech, which stand or fall by themselves. As a liberal conservative, I venerate Mill as a great man. But unlike the adherents of the totalitarian ideologies must their intellectual leaders, I am not compelled to regard our intellectual leaders with slavish adoration. For the parts of it that are true, On Liberty is among the noblest works ever written. Other parts of it are very sad stuff, and no good purpose is served by denying this.

[33] See Douglass J. Den Uyl & Tibor R. Machan, “Should Cigarette Advertising be Banned?”, in Public Affairs Quarterly, 2 (4), October 1988, pp. 19‑30.

To what extent it might have been degraded remains ambiguous. The Supreme Court has held commercial speech to be protected by the First Amendment, but not to the same extent as non‑commercial speech. It is said that total bans on truthful commercial advertising conveying information of value to a diverse audience are now untenable in the United States, although the precise limits of government regulation are still being cautiously redefined. (J.J. Boddewyn, “Tobacco Advertising in a Free Society”, in Robert D. Tollison (ed), Smoking and Society: Toward a More Balanced Assessment, D.C. Heath and Company, Lexington, Mass., 1986, p. 320).

[34] Peter L. Berger, “Environmental Tobacco Smoke: Ideological Issue and Cultural Issue”, in Robert D. Tollison (ed), Clearing the Air: Perspectives on Environmental Tobacco Smoke, D.C. Heath, Lexington, Mass.,1988, pp. 85‑86.

[35] See J.P. Vandenbroucke & V.P.A.M. Pardoel, “An Autopsy of Epidemiological Methods: The Case of ‘Poppers’ in the Early Epidemic of the Human Immuniodeficiency Syndrome (AIDS)”, American Journal of Epidemiology, 1989, 129, pp. 455‑57.

[36] Smith & Jacobson, op. cit., p. 31.

[37] James Le Fanu, “Diet and Disease: Nonsense and Non‑science”, Digby Anderson (ed), A Diet of Reason: Sense and Nonsense in the Healthy Eating Debate, The Social Affairs Unit, London, 1986, p. 119.

[38] Ibid., p.124.

[39] Peter N. Lee, Misclassification of Smoking Habits and Passive Smoking: A Review of the Evidence, Springer‑Verlag, Berlin, 1988.

The current fashion is to refer sceptics to the Fourth Report of the Independent Scientific Committee on Smoking and Health, a 68 page document published by the Government in the March of 1988. This Report does, indeed, support the claim, that a non‑smoking spouse of a smoker runs somewhere between a 10 per cent and 30 per cent greater risk of contracting lung cancer than the non‑smoking spouse of a non‑smoker. But, if we look to this support, rather than what is most often piled on it, we see that the risk of lung cancer is estimated to rise from 10:100,000 to 12 or 13:100,000. In the first place, only a fool or a fanatic without regard for common sense could panic at a risk so trivial. In the second, a statistical variation so wide may be taken as pretty meaningless (See T.E. Utley, “Morality Overcome by Fumes”, The Times, London, 29th March 1988).

[40] Boddewyn, op. cit., p. 315

[41] I obtained these figures, and those following, from the Advertising Association.

[42] Smith and Jacobson, op. cit., p. 4.

[43] Take the quotation at the head of Chapter 8 (p. 105): “Medicine is a social science, & politics nothing but medicine on a grand scale”. The author of this, Rudolph Virchow, died before Hitler came to power. But he was one of those theorists of medical authoritarianism who prepared the way for Joseph Mengele and all the other doctors who took it as their duty to help purge the Volk of undesirable elements. For a full discussion of the intimate connection between German medical opinion and national socialism, see Robert Proctor, cited below.

[44] From Robert Proctor, Racial Hygeine: Medicine under the Nazis, Harvard University Press, Cambridge, Mass., 1988, p. 248.

[45] Ibid, p. 240.

[46] Smith & Jacobson, op. cit., p. 77.

[47] BSB, op. cit..

[48] “Right to Reply”, Channel Four, 17th February, 1990. While quoting from statements made on television, I might as well add the words of Ms Joyce Epstein, the Assistant Director of ASH. Asked on the BBC programme, “Over to You”, on the 12th August, 1989, whether cigarette should be banned completely, she answered that there was “no right to smoke”. This is, of course, ambiguous. She might have been saying, that we have no right to do what she considers bad for us. Alternatively, she might have been giving voice to the dreadful—and perfectly un-English—notion, that whatever is not specifically allowed by the law is forbidden. In either case, I scarcely need say, she would be hard put to raise any principled objection to Stalin or Hitler.

[49] Boddewyn, op. cit,. pp. 315‑6.

[50] Charles Plouviez, “Food Advertising Not the Problem”, Anderson op. cit. 1986, p. 127.

 

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