In 1938 Louise Rosenblatt invented what she called “Reader Response” literary analysis, which she described in a book called, Literature as Exploration. Her invention was a simple one: Readers respond to a text imaginatively, i.e., they concoct literary meaning out of their own imaginations. This dreamed up meaning then becomes as equally valid as the consciously intended meaning of the author.
For example, if a reader imagines that Hamlet is about a prince angling to marry his mother — viola –that meaning becomes as valid as what Shakespeare actually intended Hamlet to mean. Believe The Scarlet Letter is concerned with needlecraft fostering patriarchal hegemony? Make room, Nathaniel. Think Huckleberry Finn is about the psychotic urges of a twelve year old? Move over, Twain.
In education circles, this is called fostering “creativity.”
All of this is worth mentioning because reader response — or something like it — has been applied to the First Amendment with regard to what has come to be called, “commercial speech.” Thus, where we read, “Congress shall make no laws abridging the freedom of speech, or of the press,” the Supreme Court creatively construes that to mean: “Congress shall make no laws abridging the freedom of speech, or of the press — except in the case of businessmen.” One can almost hear Louise cluck her approval. For the rest of us, though, such a contrived interpretation is ominous.
From such an invented interpretation have come three legal requirements for those engaging in commercial speech, called the “Central Hudson Test” (from: Central Hudson Gas & Electric v Public Service Commission).
The first requirement is that commercial speech may not advertise an illegal product or service. In other words, businessmen can’t promote the sale of, say, nerve gas nor market the services of hit men. Well, may anyone else? After all, is it OK, for instance, if I, in a non-commercial capacity, tell people that I’d be glad to make them some nerve agent or to whack someone for them — or to direct them to someone who would?
The second requirement is that businessmen may not engage in “deceptive” commercial speech. One could find a great deal of wiggle room in defining deceptive, but let’s give the State the benefit of the doubt. Let’s say that this means businessmen may not commit fraud. Once again, may anyone else?
Comes now, however, the third requirement. The government can regulate commercial speech if:
The government’s interest in restricting the speech is substantial, the regulation in question directly advances the government’s interest, and the regulation is no more extensive than necessary to serve the government’s interest [emphasis added].
Gee, is that all? In 1735, John Peter Zenger, owner and publisher of The New York Weekly Journal, was tried for libelous sedition. He was acquitted. Had the court, however, been required to follow the above standard, they would have thrown away the key. Excluding national security and law enforcement issues, which are covered much better elsewhere, requirement three of Hudson permits the government to practice unbridled and unabashed censorship.
But it’s only censorship of “commercial speech”, right?
When James Madison wrote the First Amendment, he didn’t distinguish between public and private speech. He didn’t say, for instance, that speech in one’s home was okey-dokey but that speech uttered in the town square was a no-no. He didn’t say owners of newspapers could say and write want they wanted, but owners of other businesses could not. Madison was unequivocal. He added “press” only to include written speech, with the primary reference, at the time, being to newspapers. But that “printing press” can clearly belong to anyone who can write — from The Sons of Liberty to Proctor & Gamble; from the Federalists to Omnicom; from The New York Weekly Journal to the Mom and Pop corner grocery.
Madison knew, and so ought we, the menacing implications of restricting any speech, commercial or otherwise. How long, for example, before the government determines, after censoring ad execs and corporate CEO’s, that regulating newspapers, TV news, films and book publishing — all of which are businesses, too — “directly advances the government’s interest”?
How long before other freedoms and rights are stifled in the name of advancing the interests, i.e., the power, of the government? For example, how long before our government follows Europe’s lead and allows “document police” the latitude to search any business without the necessity of a warrant? Do we stop there or do we, as they are contemplating, include businessmen’s homes?
Think being a businessman means not having free speech? Move over First Amendment. Think being a businessman means being open to searches without warrants? Make room, Fourth Amendment. Think not being a businessmen means you won’t be affected? What a vivid imagination. In political circles, this is called fostering dictatorship.