Book Review: Brandishing the First Amendment: Commercial Expression in America by Tamara R. Piety

Brandishing the First Amendment: Commercial Expression in America. Tamara R. Piety. Ann Arbor, MI: The University of Michigan Press, 2012. 328 pp. $70 hbk.In her acknowledgements, Tamara Piety, associate dean and professor at the University of Tulsa College of Law, expresses the hope that the recently departed C. Edwin Baker would have approved of this book that he never got the chance to read. While I can't claim any special knowledge, I feel quite sure that he would. Ed Baker helped to pave the way along a path that Piety has followed with wit, skill, dedication, and considerable audacity. Indeed, after making it clear just how dangerous the equation of money with speech and the expansion of the protections extended to corporate speech actually are, Piety proposes a radical, but compelling response to the problem. She argues for "expanding the definition of 'commercial speech' to include everything that for profit entities say" because such entities have no other legitimate purpose than the realization of profit.She builds her case in eleven chapters, organized into three coherent sections. She begins with an examination of foundational concepts within the law. She then explores the underlying values that are threatened by unconstrained corporate speech, and concludes with an emphasis on the threats to democracy and economic stability that justify her proposals for change. As befits a serious legal scholar, the footnotes and bibliographic references are extensive, but presented in well-organized separate chapters.Her chapter on the "scope of commercial expression" is a masterful presentation of the different forms, devices, and techniques through which the goals of corporate speech are pursued. The similarities between the advertising of goods and services and the messages designed to influence government policy directly and indirectly through the management of public opinion are made quite clear. The role of agents and intermediaries, including those who engage in "product placement" and "stealth marketing," is described along with those who bear responsibility for the cultivation of front groups and "astroturf organizations."In the next chapter, Piety makes it clear why she believes that speech, of the sort that natural persons create and rely upon to develop themselves and the institutions that are supposed to protect their individual and collective interests, has to be shielded from the distortions of commercial expression. Because she believes that individual autonomy, or freedom of choice, depends upon access to truth, Piety also believes that it is essential for us to understand how distortion and misdirection have become the central features of commercial speech. Because this speech is designed to shape or condition consumption, it is not an exaggeration to characterize marketing as attempted manipulation.Piety then begins to build her argument for the role of government as a regulator of commercial speech in an attempt (as paternalistic as it seems) to protect individuals from this multidirectional assault and perhaps to assist them in making truly informed decisions in the various markets they confront. …