Curb Their Enthusiasm

A recent United States Supreme Court opinion in the case of Citizens United v. Federal Election Commission, reminded me of the “antidistortion” argument involving campaign finance questions under the First Amendment. The court (pages 35-36) rejects the rationale that wealthy corporations should enjoy diminished first amendment rights on account of their ability to “distort” public opinion. While I’d refrain at this stage from expressing any view either way on this holding, the opinion does make me question the distinction we tend to draw between commercial speech and regular speech. Commercial speech receives less than first amendment protection for several reasons – its ability to distort viewpoints, its lower “value” in merely proposing a commercial transaction as opposed to making a political argument, or even the ability to have its veracity more readily ascertained as distinguished from opinion based political speech. However, consider the newspaper business in India: in my understanding, newspaper companies tend to make a loss per copy sold, and revenue streams are generated primarily from advertisement. What this means is that the established newspaper corporations in India, the bastions of high value “political speech”, owe their existence to commercial speech. Does this mean that we have to be suspicious of political speech as well – in other words, must we fear that corporate advertising may tend to “distort” political speech?

The “antidistortion” argument usually assumes that the substance of the message is more important than the intensity of the microphone. Would an antitrust policy which focuses on limiting the size of media houses specifically be justified on grounds of dampening the intensity of powerful media microphones?

Written by
Abhinav Chandrachud
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1 comment
  • commercial speech is not the same as political free speech. Newspapers have always relied on advertisements to stay afloat. Tiny Rowlands famously bought one in the UK to be used as a vehicle to pursue his vendetta against al Fayed. Newspapers are already beholden to their advertisers and it is but natural that they would be careful not to express views that would be unpleasant to their advertisers. To pretent otherwise would be naive.