Manipulative Marketing and the First Amendment

Abstract

The conventional wisdom is that the Supreme Court’s review of commercial speech restrictions has gradually become more stringent over time, edging further and further in the direction of strict scrutiny. What this narrative misses is that the Supreme Court’s review has become more rigorous over time only for a certain type of commercial speech regulation: laws that restrict non-misleading, informational advertising. A majority of the Court sees this type of regulation as unwarranted — indeed offensive — governmental paternalism. However, the Court has been, and remains, far more willing to uphold regulations on commercial speech where the governmental purpose is not to keep information from consumers, but to protect consumers from manipulation.The commercial speech doctrine is fundamentally based on the premise that advertising communicates information to consumers, allowing them to make more informed choices. Increasingly, however, common advertising techniques do not rely on communicating information; instead, they use emotional and non-conscious marketing techniques to take advantage of consumers’ cognitive limitations and biases. This article argues that such non-informational marketing practices are entitled to limited, if any, protection under the First Amendment, particularly when the products or activities being promoted are harmful to public health.After reviewing the history of the commercial speech doctrine, this article explores the connection between marketing and cognitive psychology and provides several examples of “manipulative marketing.” It concludes by analyzing possible doctrinal frameworks for the regulation of harmful and manipulative marketing practices.