Commercial Speech and Autonomy

In the classic liberal account of autonomy, the commitment of our societies to personal autonomy entails respect for our life plans, regardless of how others see their value. As the liberal philosopher John Stuart Mill famously put it, “[o]ver himself, over his own body and mind, the individual is sovereign.”Reference Mill⁹ Economists have developed a similar idea under the concept of the “homo economicus,” a hypothetical, perfectly rational individual with complete information about their options and perfect foresight of consequences who makes choices to promote their preferences.Reference Etilé¹⁰ To exercise their autonomy, individuals require freedom from external interference by others, including the State; they also need information. In this view, provided that individuals have access to information, they are the best judges of the value of their decisions and governments should remain neutral as to the value of individuals’ life plans. Therefore, the only acceptable justification for interference is to prevent harm to others — this is Mill’s famous “harm principle,” a cornerstone of liberal political philosophy. Of course, defining “harm to others” is not an easy task — it has been argued that “risk” is not a value-neutral concept and that the level of risk each individual is ready to accept is not obvious.Reference Callahan, Jennings, Gostin and Wiley¹¹

In light of the harm principle, given the absence of potential harm to others and the relevance of information for individual decision-making, restrictions on commercial speech would not be justified, as a rule, in the classic liberal view. Nevertheless, the protection of autonomy may provide reasons to justify the government’s legal right to regulate commercial speech when it is misleading or deceptive. In certain cases, governments may even be required to compel speech — for instance, when mandating disclosure requirements — to prevent harm to or exploitation of the otherwise uninformed consumer.Reference Adler¹²

Now, in addition to freedom from external interference, the exercise of autonomy requires an internal capacity for deliberative action.Reference Gostin and Wiley¹³ Individuals with insufficient understanding to make informed choices to deliberate and act based on their desires and preferences are usually protected by legal systems from decisions that may harm them. This is clear, for instance, in the case of children. Under the assumption that children are not in the best position to judge which courses of action promote their own good, or that they are more likely to make poor choices, legal systems usually protect them from making decisions on their own. That is, they interfere with children’s will to advance their good. This interference is often regarded as a form of acceptable paternalism.Reference Husak and LaFollette¹⁴ When acting on behalf of children, adults have a duty to promote childrens’ “best interests.”Reference Rojo, Spector, Zamora and Vaquero¹⁵ This duty usually involves preventing children from exposure to certain risks which, in many countries, has included the requirement for broadcasting companies to establish child protection hours in order to prevent exposure to certain contents.Reference Boyland and Tatlow-Golden¹⁶

The duty to promote children’s best interests may justify restricting commercial speech that targets them. Although as children grow older, their deliberative capacity becomes stronger and they start to understand the nutritional dimension of food, studies have shown that advertising and marketing continue to affect children’s preferences for unhealthy food products. This, in turn, impacts their body weight development and, thus, their health.Reference Naderer¹⁷ As a response to the global concern for childhood obesity, countries like Chile, South Korea, the U.K., and Argentina have adopted regulations to reduce children’s exposure to the marketing of unhealthy food products — including prohibitions of marketing of unhealthy products in schools, or using fictional characters, like cartoons, to encourage consumption.Reference Jones and Reeve¹⁸ This shows that, under the liberal framework, the autonomy-defense of commercial speech does not apply to children. The duty to promote children’s best interests actually requires governments to restrict commercial speech in these cases.Reference Garde, Byrne, Garde, Curtis and Shutter¹⁹

In contrast, as we have already mentioned, in the liberal framework, given the commitment to neutrality and deference to the individual as the best judge of their interests, overriding a competent adult’s preferences for the sake of preventing harm to themselves is a controversial measure.²⁰ Nevertheless, autonomy could still provide an argument to restrict commercial speech even if not aimed at children.

In our societies, we often accept paternalistic measures for risk regulation, such as the mandating of motorcycle helmets and seat belts or the fluoridation of drinking waters. Other more socially controversial measures, such as taxes on unhealthy products, like cigarettes, are paternalistic because they aim to disincentivize harmful conducts.²¹ These measures and regulations acknowledge the centrality of personal autonomy, but recognize the fact that personal behavior is not merely an issue of free will, and that both internal and external constraints also shape it.²² This is relevant in the context of unhealthy food products particularly due to the way in which these products are purposely engineered to trigger neurotransmitters and manipulate addictive-inducing sensations, as well as practices designed to target mental and emotional processing, such as, for instance, neuromarketing techniques.Reference Moss²³ Accordingly, it can be argued that human beings actually lack complete information and foresight when it comes to harmful products like unhealthy foods, as well as logical and practical omniscience: we cannot have complete knowledge of all that logically and practically follows from our current actions and commitments. Moreover, we may lack the ability to fully understand risks. This is known as “bounded rationality.”²⁴

Considering the evidence showing people’s bounded rationality, autonomy could actually provide reasons in favor of a restriction of commercial speech. Access to appropriate information is a necessary condition to make informed choices and assume risks, but commercial marketing and advertising can skew information consumers receive and heavily influence consumer purchase and consumption choices.²⁵ In some cases, marketing tactics from the food and beverage industry portray consumption of unhealthy food products as “cool” or use popular fictional characters to associate the products with social recognition and professional success.Reference Gostin²⁶

It is not possible to speak of full rationality when the marketing and advertising of unhealthy products operate at the most primitive level of our brains, influencing our decision-making processes and, thus, undermining the detailed scrutiny of the advantages and disadvantages of their consumption. Marketing and advertising techniques generate an impulse to consume these unhealthy food products.Reference Freeman and Kelly²⁷ Thus, measures to restrict commercial speech would be justified in cases in which regulation is intended to neutralize the effects that marketing and advertising have on the consumption of products harmful to health in the face of a rationality deficit.Reference Simões²⁸

Commercial Speech, Community, and Perfectionism

Another dimension of the commercial speech restriction debate comes from the communitarian perspective that strives to answer the question of what type of community we want to live in and what kind of relationships we want to foster. Communitarians argue that social institutions must promote social and communal values, which build our identity. Of course, individual autonomy and self-fulfillment matters, but they are not the main and only values for life in society.Reference Bell²⁹ In this view, our societies are not merely a collection of strangers with duties to respect the legal rights of one another arising from a “social contract”; our respect for others is that we owe each other as fellow members of a community. Public health matters because it “encourages connectedness to the community… viewing health risks as common to the group, rather than specific to individuals, helps foster a collective responsibility for well-being.”³⁰ As Dan Beauchamp explained in his seminal article, public health is “communal in nature, and concerned with the well-being of community as a whole and not just the well-being of any particular person. Policy, and here public health paternalism, operates at the level of practices and not at the level of individual behavior.”Reference Beauchamp, Beauchamp and Steinbock³¹ As such, regulators must use the law as a tool for creating conditions for a type of society where individuals can lead healthy and meaningful lives in their communities. According to this view, public health regulations, such as those involving restrictions to the marketing or advertising of unhealthy food products, aim at achieving community well-being. Accordingly, from a communitarian perspective, commercial speech restrictions would be justified as they aim to promote a community where people can lead healthy lives.

It may be argued, however, that communitarian public health measures restricting commercial speech incur in perfectionism. By dictating and promoting certain ideals of human excellence. Perfectionists accept restrictions to autonomy to promote those ideals of excellence. This is a stronger thesis than paternalism because it disregards the agent’s interests and only seeks to adjust the agent’s behavior to a particular ideal. In that sense, perfectionism is objectionable because it disrespects individuals in a particularly profound way: it does not set precise limits for its demands, and its goals do not have to be shared by its recipients.Reference Hurka³²

However, the perfectionist accusation does not seem to apply to commercial speech restrictions, as these restrictions do not impose, nor aim to impose, an ideal of excellence or a lifestyle. On the contrary, they contribute to promoting an environment in which people can enjoy greater freedom to carry out their life plans by making informed choices or avoiding uninformed ones within their communities. Were the State not to intervene, it would deprive people of real opportunities to choose a healthy way of life. State intervention aims at creating environments that ensure healthy options do not go unnoticed or require a significant investment of time, money, and willpower that few people have. In such contexts, the State could effectively promote life plans that it considers valuable, as long as it does not coercively impose the way of life that it considers correct.Reference Raz³³