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Eric Swetsky's legal column published in Marketing Magazine, January 2000
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More speech, not less
Pulling offensive ads does not further the debate on the limits of good taste
With trepidation, I enter the KOKO ad controversy. So I'll begin by making three points perfectly clear. One, I express no view as to whether that ad should have been published. Two, I express no view on the content of that ad. Three, not every ad is entitled to be published or broadcast (I'll address how to approach the line drawing in my concluding paragraph). I am entering the fray because I think an important point needs to be considered now, before the next controversial ad comes up for publication review.
Every time an ad is involuntarily pulled by some third party (for example, by the editor of Marketing Magazine, or by Advertising Standards Canada), it is an act of censorship. Put whatever spin you want on it, sugar-coat it whatever way you like, the bottom line is that the ad has been censored. For a community that earns its very livelihood because of the existence of free speech principles, the subject of the involuntary pulling of ads should be approached with caution.
In my legal career, I have read perhaps thousands of judgments from the courts, and one of the two that has touched me to my core is this 1927 opinion, delivered by the late United States Supreme Court justice, William Brandeis:
"Fear of serious injury cannot alone justify suppression of free speech…Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. …If there be time to expose through discussion…the remedy to be applied is more speech, not enforced silence."
The publication of that KOKO ad resulted in many thoughtful letters being published in Marketing, it resulted in this column, it likely caused this magazine's silent majority to reflect on what constitutes offensiveness in advertising and it may cause many a creative director and writer of copy to think about how far they can push it. Had that ad not been published, none of this would have occurred.
The same issue exists with Advertising Standards Canada (ASC). Over the years, that organization has questioned a number of advertisements (the shopping cart ad, for example) because they have been considered as possibly offensive or as possibly violating other similar public policy principles in its Code.
Every time I read that ASC questions an ad for such reasons, I am left unsettled because of the raw act of censorship involved (again, let me be clear, I make no comment about the content of the ad, it is the act of censorship that troubles me). I am always left to wonder if ASC has asked itself more than the question as to whether the ad is offensive, and if it has gone on to as itself whether the benefits to be gained from abrogating speech will sufficiently exceed the harm that results from its abrogation to justify the act of censorship it is engaging in.
I fully acknowledge that an offensive ad can be cruel. Yet, pulling the ad cuts off the very debate that produces the understanding to prevent future such occurrences. That's what Justice Brandeis tried to teach us. If fueled by a sufficient undercurrent of disgust, the public debate will be considerable. Those, in a nutshell, are the competing interests: the protection of legitimate personal sensitivities, on the one hand, and attaining enlightenment through the public debate that results, on the other hand.
More speech, not less. That is the overall philosophy I encourage ASC and the editor of Marketing to adopt when an advertisement involving public policy issues is questioned.
ASC and the publisher of Marketing have important mandates. They are charged with the responsibility of separating the wheat from the chaff. Not all ads involving public policy issues are entitled to be published or aired. In deciding what is wheat, and what is chaff, the best advice that I can offer Marketing's publisher, and ASC, is this: while you are unquestionably granted the right to exert control over an advertisement, you should possess a strong presumption against the exercise of that right. Therein will lie the check and balance.
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