Tuesday, February 26, 2008

Commercial Speech, Lipitor and Regulations, Oh My (JM)

Is there such a thing as distinctly commercial speech? Well throughout our legal history, since the Valentine decision in 1942, it has been considered a unique class of speech with varying levels of isolation. I am not going to bore you with a layman's con law history of "commercial speech" conceptions. Instead, the First Amendment Center provides a pretty good historical overview, if you're interested. I would rather get to the broader implications of this issue.

Pfizer today decided to remove those heinous Dr. Robert Jarvik advertisements for Lipitor. They were particularly disagreeable ads because Robert Jarvik is not a medical doctor of any sort. Of course, when we watch commercials like this, we have absolutely no point of reference for authority. Which is why, of course, it is insanely stupid to make your own medical decisions, especially on the basis of commercials (for instance, I am pretty sure I want Cialis, I equally sure I don't know what it does). But as crazy as self-diagnosis and self-medication is, it is a full on trend in American society. Mark Penn actually does a really good job laying out and establishing this pattern in his book Microtrends. The fact is, that more and more people are influenced by these advertisements.

This leads to one of the key problems with the "marketplace of ideas" metaphor that is supposed to protect us from any damage that granting absolute first amendment rights to commercial enterprises: we don't have perfect information. The "marketplace" is an awesome metaphor if all ideas have an opportunity to be weighed equally. However, that is so obviously not the case. Instead we live in a society where our exposure to these commercial ideas is essentially proportional to the money backing those ideas. Moreover, these ideas don't come at the public in the form of discourse and contention, but instead are highly stylized, culturized packets of noise with the express goal of connecting us with the object's identity without ever being connected to the explicit content of the object itself; again, I need Cialis, but I know not what it is. I know distortions of the marketplace are kind of my hobbyhorse, but the marketplace is not simply one dimensional and has many assumed aspects that are not necessarily as freeing as free-marketeers would have you believe.

Now in the case of medical drugs there is the presumed counterbalance of physician prescriptions. However, doctors are becoming increasingly complacent in their right to veto the prescription of drugs, ceding ever more to their patients' whims. An even deeper issue is that these very same drug companies intensely market doctors with free gifts, trips and incredibly attractive salespeople. The truth is that on both ends of the spectrum "commercial speech" is taking place, but rarely is that speech about the actual product.

It's this disconnect that worries me. It seems quite clear to me that commercial enterprises have a right to inform the public about their product, and in turn the people have a right to be informed. The problem is this shift from actually informing the public to the types of advertisements we see today. I think the government has a very real role in making sure to protect speech, but also guarantee that speech is informative. Of course, this sounds rife with the possibilities for corruption. Obviously some balance must be struck. However, on one hand government regulation tempered with commercial opposition might provide some good, while our other option is to allow commercial speech unfettered. People always assume this weird false dichotomy, it's either government intervention or freedom. That's missing the boat, it's either government intervention or market intervention (or any countless types of intervention), the point is freedom is always referential, it is not some natural state that is oppressed only by dint of governance.

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