"Commercial speech" being protected by free speech laws anywhere is abhorrent. The advertising industry, in and of itself, seems abhorrent to me. It's one of the worst things humans have come up with, ever.
Could one not categorize material published in a book, magazine, or on television as 'commercial speech', liable to restrictive licensing and censorship? This seems like a slippery slope which the USA is on the correct side of.
I agree that commercial speech is not the same as advertising, but the comment I replied to was talking about restricting commercial speech, not advertising.
And not a single one of these is tenable, even when combined. How do the people that post reviews, or spread something over word-of-mouth, discover the thing in the first place? Try your hand at starting a business and trying to sell goods or services using these methods and see how well it works.
>How do the people that post reviews, or spread something over word-of-mouth, discover the thing in the first place?
The follow industry conventions, visit registries of industry websites, have professional lists where companies submit their announcements (and not to the general public) and so on.
>Try your hand at starting a business and trying to sell goods or services using these methods and see how well it works.
If advertising is banned, it will work just as good as for any competitor.
It only assumes they are aware that the category of products exists, and ordinary word-of-mouth communication is sufficient to propagate that knowledge.
How does word-of-mouth communication propagate knowledge that is currently in the possession of zero existing customers? Or operate for products that people have little reason to discuss with other people?
Suppose you sell insulation and replacing the insulation in an existing house could save $2 in heating and cooling for each $1 the insulation costs. Most people know that insulation exists, but what causes them to realize that they should be in the market for it when they "already have it"?
People don't need to discuss specific products, they only need to be aware of the existence of product categories. If it's genuinely the case that whole product categories are unknown to many people who could realistically benefit from them, as determined by a disinterested third party, an exception could be made for advertising that does not mention specific products or brands.
The insulation example can be solved by publication of data on average heating costs. When people learn that their neighbors are paying less they will be naturally incentivized to investigate why. Equivalent problems can be solved with the same general technique.
> If it's genuinely the case that whole product categories are unknown to many people who could realistically benefit from them, as determined by a disinterested third party, an exception could be made for advertising that does not mention specific products or brands.
Now all of the "brought to you by America's <industry group>" ads are back in. So is every pharma ad and every other patented product because they don't have to tell you a brand when there is only one producer.
> The insulation example can be solved by publication of data on average heating costs.
Publication where? In the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of the Leopard"? Also, who decides to publish it, decides what it will say or pays the costs of writing and distributing it?
An industry group is not a disinterested party. Minimum competition requirements can be imposed. As I said elsewhere in the thread, a solution being imperfect is not a good reason to leave the problem unaddressed.
>Suppose you sell insulation and replacing the insulation in an existing house could save $2 in heating and cooling for each $1 the insulation costs. Most people know that insulation exists, but what causes them to realize that they should be in the market for it when they "already have it"?
The same legit things that can cause them to realize it today. Word of mouth, a product review, a personal search that landed them on a new company website, a curated catalog (as long as those things are not selling their placements).
An ad is the worse thing to find such things out - the huge majority ranges from misleading to criminally misleading to bullshit.
True, you can't separate ads vs sponsored content quite easily.
but you can help this by banning all forms of active tracking.
Static ads only, no click tracking, and complete ban on profiling clients and especially on adjusting prices based on client/possible client behavior patterns.
To become a member of the EU, you have to first join the Council of Europe and its European Convention on Human Rights – article 10 of which guarantees the right to free expression. The EU also has its own Charter of Fundamental Rights which says the same thing. And the plan is for the EU to become a party to the Convention in its own right, although that's got bogged down in technical legal disputes and still hasn't happened, despite the 2009 Lisbon Treaty mandating it.
The US First Amendment has no exceptions as worded, but the US Supreme Court has read some into it. The Convention has exceptions listed in the text, although they are vaguely defined – but like the US, the European Court of Human Rights has developed extensive case law on the scope of those exceptions.
The big difference in practice is the US exceptions end up being significantly more narrow than those in Europe. However, given in both, the details of the exceptions are in case law – courts can and do change their mind, so this difference could potentially change (either by narrowing or broadening) in the decades to come.
> "Article 10 of the Human Rights Act: Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
> Seems to be about as strong as the Soviet Constitution's protections:
In the 2015 case Perinçek v. Switzerland, the European Court of Human Rights applied Article 10 to find against a Swiss law making it a crime to deny the Armenian genocide. Can you imagine a Soviet court ever striking down a genocide denial law?
The decision is controversial because it introduces a double standard into the Court's case law – it had previously upheld laws criminalising Holocaust denial, now it sought to distinguish the Holocaust from the Armenian genocide in a way many find arbitrary and distasteful – the consistent thing would be to either allow denying both or disallow denying both.
But still, it just shows how mistaken your Soviet comparison is.
Suppose a company wants to write some product documentation so customers and prospective customers know what features their product has and how to use them. They hire someone to write the documentation and then someone else to distribute it. Is there a good way to distinguish this from advertising?
The most plausible way would be if the one you're paying to distribute it has some kind of exclusive control or market power over the distribution channel so that you're paying them a premium over competing distributors. But then wouldn't the best way to prevent them from extracting that premium to be to make it so nobody has exclusive control over distribution channels, e.g. by breaking up concentrated markets or requiring federated protocols?
>Suppose a company wants to write some product documentation so customers and prospective customers know what features their product has and how to use them. They hire someone to write the documentation and then someone else to distribute it. Is there a good way to distinguish this from advertising?
Yes. You self host it as a company, and it can only be reproduced (if they wish) in outlets (say review sites) when there's no payment or compensation of any kind involved for that.
It's a corporation though. It can't do anything without paying someone to do it, unless someone volunteers to do it for free, which isn't very likely. And how do you self-host distribution? You would have to run your own fiber to every customer's house or spin up your own postal service or you're paying someone to do that.
You have your own website and your copy on it. Don't start that "but if you pay some hosting provider to host that website that would be advertising", or the
"And how do you self-host distribution? You would have to run your own fiber to every customer's house or spin up your own postal service or you're paying someone to do that."
If you pay some hosting provider then you're obviously paying someone, and now you have the caravan of trucks going through the loophole because Facebook et al get into the hosting business and then their "spam filter" trusts the things on their own hosting service so using it becomes the way to get seen.
The "legal definition of advertising" is the thing you have to write into the law you want to enact. If you can't answer the question as the proponent of the proposal then how is a judge expected to do it?
What the parent is getting at is it's not a mystery, such definitions already exist in all kinds of jurisdictions.
In any case it's trivial to come up with such a definition that covers most cases. Doesn't matter if it doesn't cover some gray areas or 100% of it. Laws can be supplemented and ammended.
We don't have an all-encompassing definition of porn either, but we have legal definitions, and we have legal frameworks regarding it.
>That's exactly the thing that matters when you're dealing with something where every loophole is going to have a caravan of trucks driving through it.
Everything with profit "is going to have a caravan of trucks driving through it". He have laws anyway for those things, and for the most part, they're effective. I'd take a relative improvement even if it's not 100% over free reign.
>You're picking the thing which is a hopeless disaster as your exemplar?
I don't consider it a "hopeless disaster" (except in it's effects on society). As a business it's regulated, and for the most part, stays and follows within those regulations. The existence of dark illegal versions of it, or exploitation in the industry, doesn't negate this.
Outside of US free speech isn't the carte blanche it is stateside. There are guardrails, there are limitations pretty much everywhere else. Even in the US This militant application is fairly recent, post 1980s.
You don't need to ban advertising, you just need to ban paying for advertising. That doesn't harm free speech. When there's no money to be made the problem will sort itself out.
This by the way is my understanding of why the EU writes laws the way they do.
If they just banned infinite scrolling someone would come up with something equivalent that works slightly differently. Now they need a whole new law. It’s just constant whack-a-mole.
So instead they seem to ban goals. Your thing accomplishes that goal? It’s banned.
It’s a pretty different way than how we seem to do things in the US. But I can see upsides.
I'm not following the relationship - because you'd have to pay, thus it's not "free" speech? It's hard to argue that having to pay a minimal fee (of let's say $1 per month) would be something against free speech. But the payment shall remain anonymous obviously.
What are you on about? Who’s speech? The speech of a massive multinational corporation? No thanks. I want the freedom to browse without getting pointless products shoved down my throat.
>How will you ban that without infringing on free speech
You don't, but the EU doesn't need to care about American ideas of free speech. This is actually in some sense the biggest hurdle to all of this, the psychologically defensive posture that somehow assumes that on European territory this should even be a concern. Also as a sidenote this is even within America a kind of revisionist history, the 20th century had plenty of broadcasting and licensing rules. This unfettered, deregulated commercial environment is even in the US a creature of the last ~40-50 years, and those unchained companies, not unironically, then went on to convince everyone to defend that state of affairs given each opportunity.
Obvious examples of negative consequences of the first amendment include the profusion of false and misleading advertising, the scourge of political campaign spending, and the disastrous firehouse of misinformation being pushed out in various online forums. The idea that an abstract carte blanche for free speech outweighs those real and present ills is misguided. At the same time, we see that the limitation to only protection from government action enables effective quelling of speech by private actors.
At the core of the first amendment is the idea that people should not be punished for criticizing their government. I think that idea is worth preserving. But the idea that people are free to say anything they choose, in any context, regardless of its factual status, and also that their permission to do so is limited only by the resources they can muster to promulgate their speech, is an unwarranted extension of that concept.
"Commercial speech" being protected by free speech laws anywhere is abhorrent. The advertising industry, in and of itself, seems abhorrent to me. It's one of the worst things humans have come up with, ever.
Could one not categorize material published in a book, magazine, or on television as 'commercial speech', liable to restrictive licensing and censorship? This seems like a slippery slope which the USA is on the correct side of.
Commercial speech is not the same as advertising.
The product is the same as the speech, whereas in advertising the speech is in sycophantic service of another product.
I agree that commercial speech is not the same as advertising, but the comment I replied to was talking about restricting commercial speech, not advertising.
You make your feelings clear, but don't give any arguments for it.
That won't convince anyone.
I'm kind of curious how people think a new business should make its existence known to prospective customers.
They don't think of that. At all.
Many don't think businesses should exist in the first place.
It's 2026.
We can have word of mouth, genuine, in forums and social media. We can have
We can have reviews, genuine, in websites.
We can have websites which present new products and business, not as paid sponsorships.
We can search on our own initiative and go to their website.
We can have online catalogs.
And tons of other ways.
And not a single one of these is tenable, even when combined. How do the people that post reviews, or spread something over word-of-mouth, discover the thing in the first place? Try your hand at starting a business and trying to sell goods or services using these methods and see how well it works.
>How do the people that post reviews, or spread something over word-of-mouth, discover the thing in the first place?
The follow industry conventions, visit registries of industry websites, have professional lists where companies submit their announcements (and not to the general public) and so on.
>Try your hand at starting a business and trying to sell goods or services using these methods and see how well it works.
If advertising is banned, it will work just as good as for any competitor.
Tenable for what, global business? Many local businesses do fine without advertising and/or using these methods.
Making global business harder and forcing things more local actually sounds like a great benefit.
I'm all for that as well.
We could use less 1T companies and more a few billion or 100s of millions level companies too.
Searchable catalogues of products with prices and features listed.
That assumes the customer is aware that the product exists.
how did business do before the internet?! assuming people bought things before we had the internet?
It only assumes they are aware that the category of products exists, and ordinary word-of-mouth communication is sufficient to propagate that knowledge.
How does word-of-mouth communication propagate knowledge that is currently in the possession of zero existing customers? Or operate for products that people have little reason to discuss with other people?
Suppose you sell insulation and replacing the insulation in an existing house could save $2 in heating and cooling for each $1 the insulation costs. Most people know that insulation exists, but what causes them to realize that they should be in the market for it when they "already have it"?
People don't need to discuss specific products, they only need to be aware of the existence of product categories. If it's genuinely the case that whole product categories are unknown to many people who could realistically benefit from them, as determined by a disinterested third party, an exception could be made for advertising that does not mention specific products or brands.
The insulation example can be solved by publication of data on average heating costs. When people learn that their neighbors are paying less they will be naturally incentivized to investigate why. Equivalent problems can be solved with the same general technique.
> If it's genuinely the case that whole product categories are unknown to many people who could realistically benefit from them, as determined by a disinterested third party, an exception could be made for advertising that does not mention specific products or brands.
Now all of the "brought to you by America's <industry group>" ads are back in. So is every pharma ad and every other patented product because they don't have to tell you a brand when there is only one producer.
> The insulation example can be solved by publication of data on average heating costs.
Publication where? In the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of the Leopard"? Also, who decides to publish it, decides what it will say or pays the costs of writing and distributing it?
An industry group is not a disinterested party. Minimum competition requirements can be imposed. As I said elsewhere in the thread, a solution being imperfect is not a good reason to leave the problem unaddressed.
>Suppose you sell insulation and replacing the insulation in an existing house could save $2 in heating and cooling for each $1 the insulation costs. Most people know that insulation exists, but what causes them to realize that they should be in the market for it when they "already have it"?
The same legit things that can cause them to realize it today. Word of mouth, a product review, a personal search that landed them on a new company website, a curated catalog (as long as those things are not selling their placements).
An ad is the worse thing to find such things out - the huge majority ranges from misleading to criminally misleading to bullshit.
True, you can't separate ads vs sponsored content quite easily.
but you can help this by banning all forms of active tracking.
Static ads only, no click tracking, and complete ban on profiling clients and especially on adjusting prices based on client/possible client behavior patterns.
Magazines made it work for decades.
Websites can too.
If you know the kind of articles your readers like, you can find ads that your readers will like.
Free speech is a thing in the EU too.
To become a member of the EU, you have to first join the Council of Europe and its European Convention on Human Rights – article 10 of which guarantees the right to free expression. The EU also has its own Charter of Fundamental Rights which says the same thing. And the plan is for the EU to become a party to the Convention in its own right, although that's got bogged down in technical legal disputes and still hasn't happened, despite the 2009 Lisbon Treaty mandating it.
The US First Amendment has no exceptions as worded, but the US Supreme Court has read some into it. The Convention has exceptions listed in the text, although they are vaguely defined – but like the US, the European Court of Human Rights has developed extensive case law on the scope of those exceptions.
The big difference in practice is the US exceptions end up being significantly more narrow than those in Europe. However, given in both, the details of the exceptions are in case law – courts can and do change their mind, so this difference could potentially change (either by narrowing or broadening) in the decades to come.
https://www.equalityhumanrights.com/human-rights/human-right...
> "Article 10 of the Human Rights Act: Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
Seems to be about as strong as the Soviet Constitution's protections: https://www.departments.bucknell.edu/russian/const/77cons02....
> Seems to be about as strong as the Soviet Constitution's protections:
In the 2015 case Perinçek v. Switzerland, the European Court of Human Rights applied Article 10 to find against a Swiss law making it a crime to deny the Armenian genocide. Can you imagine a Soviet court ever striking down a genocide denial law?
The decision is controversial because it introduces a double standard into the Court's case law – it had previously upheld laws criminalising Holocaust denial, now it sought to distinguish the Holocaust from the Armenian genocide in a way many find arbitrary and distasteful – the consistent thing would be to either allow denying both or disallow denying both.
But still, it just shows how mistaken your Soviet comparison is.
I can definitely imagine the Soviet Union making arbitrary rules about which genocides were recognized and ‘protected’, and which were not.
“Free speech” and yet people are arrested for mean memes
It would be worth a try to outlaw compensation for advertising. The spirit of free speech is usually that you aren’t being paid for it.
Suppose a company wants to write some product documentation so customers and prospective customers know what features their product has and how to use them. They hire someone to write the documentation and then someone else to distribute it. Is there a good way to distinguish this from advertising?
The most plausible way would be if the one you're paying to distribute it has some kind of exclusive control or market power over the distribution channel so that you're paying them a premium over competing distributors. But then wouldn't the best way to prevent them from extracting that premium to be to make it so nobody has exclusive control over distribution channels, e.g. by breaking up concentrated markets or requiring federated protocols?
>Suppose a company wants to write some product documentation so customers and prospective customers know what features their product has and how to use them. They hire someone to write the documentation and then someone else to distribute it. Is there a good way to distinguish this from advertising?
Yes. You self host it as a company, and it can only be reproduced (if they wish) in outlets (say review sites) when there's no payment or compensation of any kind involved for that.
It's a corporation though. It can't do anything without paying someone to do it, unless someone volunteers to do it for free, which isn't very likely. And how do you self-host distribution? You would have to run your own fiber to every customer's house or spin up your own postal service or you're paying someone to do that.
>And how do you self-host distribution?
You have your own website and your copy on it. Don't start that "but if you pay some hosting provider to host that website that would be advertising", or the
"And how do you self-host distribution? You would have to run your own fiber to every customer's house or spin up your own postal service or you're paying someone to do that."
that borders on being obtuse on purpose.
If you pay some hosting provider then you're obviously paying someone, and now you have the caravan of trucks going through the loophole because Facebook et al get into the hosting business and then their "spam filter" trusts the things on their own hosting service so using it becomes the way to get seen.
There are legal definitions of advertising, I’m sure the courts will be able to figure it out.
The "legal definition of advertising" is the thing you have to write into the law you want to enact. If you can't answer the question as the proponent of the proposal then how is a judge expected to do it?
What the parent is getting at is it's not a mystery, such definitions already exist in all kinds of jurisdictions.
In any case it's trivial to come up with such a definition that covers most cases. Doesn't matter if it doesn't cover some gray areas or 100% of it. Laws can be supplemented and ammended.
We don't have an all-encompassing definition of porn either, but we have legal definitions, and we have legal frameworks regarding it.
> Doesn't matter if it doesn't cover some gray areas or 100% of it.
That's exactly the thing that matters when you're dealing with something where every loophole is going to have a caravan of trucks driving through it.
> We don't have an all-encompassing definition of porn either, but we have legal definitions, and we have legal frameworks regarding it.
You're picking the thing which is a hopeless disaster as your exemplar?
>That's exactly the thing that matters when you're dealing with something where every loophole is going to have a caravan of trucks driving through it.
Everything with profit "is going to have a caravan of trucks driving through it". He have laws anyway for those things, and for the most part, they're effective. I'd take a relative improvement even if it's not 100% over free reign.
>You're picking the thing which is a hopeless disaster as your exemplar?
I don't consider it a "hopeless disaster" (except in it's effects on society). As a business it's regulated, and for the most part, stays and follows within those regulations. The existence of dark illegal versions of it, or exploitation in the industry, doesn't negate this.
Easy: free speech was never meant for and fought for advertising. Any judicial body who says otherwise is bullshiting people.
Conflating advertising with free speech is like conflating sex work with reproductive rights.
Outside of US free speech isn't the carte blanche it is stateside. There are guardrails, there are limitations pretty much everywhere else. Even in the US This militant application is fairly recent, post 1980s.
You don't need to ban advertising, you just need to ban paying for advertising. That doesn't harm free speech. When there's no money to be made the problem will sort itself out.
That's gonna probably just create a bunch of loopholes or hacks like paying with favors instead of cash
Loopholes can be addressed on a case-by-case basis. A solution being imperfect is not a good reason to leave the problem completely unaddressed.
This by the way is my understanding of why the EU writes laws the way they do.
If they just banned infinite scrolling someone would come up with something equivalent that works slightly differently. Now they need a whole new law. It’s just constant whack-a-mole.
So instead they seem to ban goals. Your thing accomplishes that goal? It’s banned.
It’s a pretty different way than how we seem to do things in the US. But I can see upsides.
That's the same in every domain when there's a profit. Doesn't mean laws and bans don't reduce the related activity dramatically.
I'm not following the relationship - because you'd have to pay, thus it's not "free" speech? It's hard to argue that having to pay a minimal fee (of let's say $1 per month) would be something against free speech. But the payment shall remain anonymous obviously.
What are you on about? Who’s speech? The speech of a massive multinational corporation? No thanks. I want the freedom to browse without getting pointless products shoved down my throat.
>How will you ban that without infringing on free speech
You don't, but the EU doesn't need to care about American ideas of free speech. This is actually in some sense the biggest hurdle to all of this, the psychologically defensive posture that somehow assumes that on European territory this should even be a concern. Also as a sidenote this is even within America a kind of revisionist history, the 20th century had plenty of broadcasting and licensing rules. This unfettered, deregulated commercial environment is even in the US a creature of the last ~40-50 years, and those unchained companies, not unironically, then went on to convince everyone to defend that state of affairs given each opportunity.
I'd say the first amendment is due for an overhaul anyway for a variety of reasons. (Heck, the whole constitution is.)
You can't say something like that and refuse to elaborate
Which parts specifically?
Obvious examples of negative consequences of the first amendment include the profusion of false and misleading advertising, the scourge of political campaign spending, and the disastrous firehouse of misinformation being pushed out in various online forums. The idea that an abstract carte blanche for free speech outweighs those real and present ills is misguided. At the same time, we see that the limitation to only protection from government action enables effective quelling of speech by private actors.
At the core of the first amendment is the idea that people should not be punished for criticizing their government. I think that idea is worth preserving. But the idea that people are free to say anything they choose, in any context, regardless of its factual status, and also that their permission to do so is limited only by the resources they can muster to promulgate their speech, is an unwarranted extension of that concept.