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.

The Man Who Met Mark Penn (or Andy Griffith) (JM)

So tonight at the Strand I went to meet Mark Penn. For those of you not aware Mark Penn is the chief strategist and pollster for Hillary's campaign. He does not receive a whole lot of love at AOTG for his rather slimy spinning of stories and polls. You may know him as the guy who mentioned "drug use" as a way of not mentioning "drug use" about Obama (you see, like I just did). Anyway, he was actually pretty affable and a fairly entertaining speaker.

He rather scrupulously avoided the discussion of politics, unfortunately, but there were some telling ideas in his discussion. He was there to promote his book Microtrends, which is essentially Moneyball for all of society rather than just baseball. Basically the book examines a bunch of "microtrends" or small discrete social units that are often overlooked by a large portion of society and statistical analysis. I think I will post more concretely on this in the near future as I want to read more deeply; but, I think it is pretty fascinating that he insists on defining "microtrends" as functions of socially cohesive units. It's a social aspect of data trends that I am very interested in, and I want a more complete picture of his argument before I dive in. It, however, strikes me as possible that most of these units cohere not natural, but as a function being examined and marketed to. But before I get in to a weird pop sociology debate with Mark Penn (and Malcolm Gladwell for that matter) back to the point at hand.

One of the big trends Penn emphasized is what he called the LASers (or Long Attention Spanners). He argued that we have been so focused on the people with short spans of attention that we have lost an eye for the LAS market. This certainly seems to have borne itself in the Hillary campaign, looking at her strategic decisions to vote an affirmative on the legislation condemning the Irani Guard and her willingness to discuss policy in great details. More telling was his discussion of rich elites. He made the argument that working class consumers are much more particular and focused when making decisions. His argument was essentially that because of greater cohesiveness and access to information sharing amongst the elite, they are far more likely to accept major news stories and conventional wisdom of their community as gospel. He didn't have much evidence for this, just assertion (an assertion that I think undergirds much of his argument about "microtrends"). However, the underlying message seemed pretty clear to me, despite his disinterest in talking about politics. It struck me as a somewhat dressed up way to discuss the Obamamania sweeping the liberal wine-set. It's a point that merits some further consideration, and perhaps a deeper discussion at some point in the future.

Finally, I must say, the crowd who goes to hear a book talk from Mark Penn at the Strand on Monday night is a pretty darn intelligent crowd. Most of the questions were insightful and actually furthered the discussion (except for the few that tried to bait Penn in to a political discussion). Afterwards everyone milled around talking with each other and Mark, and I got to have a nerdily wonkish conversation about determining sample sizes for incredibly small populations and specific markets. Anyway, my point is that Mark Penn, not such a bad guy to talk to for awhile, despite any impression one might receive from the media.

Oh, by the by, first person to correctly identify the parenthetical reference in the post title wins a prize.