We don't need to go into absurd discussions in order to prevent 99% of the harm that comes from modern advertising.
The line is clear: is money being exchanged in order to promote a product? That's advertising.
Someone I know mentioning a product because they want to recommend it to me? Not advertising.
Giving out "free" samples? Presumably someone is being paid to do that, so advertising.
We can later quibble about edge cases and how to handle someone putting up a sign for their business. Many countries have regulations about visual noise, so that should be considered as well.
But it's pretty easy to distinguish advertising that seeks to manipulate, and putting a stop to that. Hell, we could start by surfacing the dark data broker market and banning it altogether. That alone should remove the most egregious cases of privacy abuse.
> The line is clear: is money being exchanged in order to promote a product? That's advertising.
this is obviously not a clear line. No money is exchanged when I promote my own product through my own channels, nor when I promote my friends products, whether I disclose it as promotion, or disguise it as my genuine unaffiliated opinion. Sometimes it really is a genuine opinion! Even worse: sometimes a genuine opinion becomes an incentivized one later on as someone's audience grows
the good news is there is a solution that doesn't require playing these cat & mouse games and top down authority deciding what is allowed speech: you want better ways to reach the people who want your product.
Ads are a bad solution to a genuine problem in society. They will persist as long as the problem exists. People who sell things need ways to find buyers. Solve the root problem of discernment rather than punishing everyone indiscriminately
> People who sell things need ways to find buyers.
No, you've got that backwards. People who sell things should have a way of announcing their product to the world. Buyers who are interested in that type of product should be the ones seeking out the companies, not the other way around.
The current approach of companies pushing their products to everyone is how we got to the mess we are in today. Companies will cheat, lie, and break every law in existence in order to make more money. Laws need to be made in order for companies to stop abusing people.
You know what worked well? Product catalogs. Companies buy ad space in specific print or digital media. Consumers can consult that media whenever they want to purchase a specific product. This is what ecommerce sites should be. Give the consumer the tools to search for specific product types, brands, specifications, etc.; get rid of fake reviews and only show honest reviews from verified purchases and vetted reviewers, and there you go. Consumers can discover products, and companies can advertise.
This, of course, is only wishful thinking, since companies would rather continue to lie, cheat, and steal, as that's how the big bucks are made.
I honestly find it disturbing that with all of humanity's progress and all the brilliant technology we've invented, all of our communication channels are corrupted by companies who want to make us buy stuff, and by propaganda from agencies that want to make us think or act a certain way. Like holy shit, people, is this really the best we can do? It's exhausting having to constantly fight against being manipulated or exploited.
Product catalogs are advertising... The Sears catalog was full of products made by other companies, and Sears paid a ton of money to get those catalogs to as many people as possible
I think everyone knows that, but the distinction is that the catalog is "pull" in the sense that if you decide to keep your catalog, the advertising is inside the catalog, and you have to physically retrieve your catalog and open it to find what you're looking for (when you're looking for it), instead of the "push" method of running advertisements in every news article and on every bus.
>I think everyone knows that, but the distinction is [...]
The discussion got muddied because in this subthread, it morphed from "What if we made _all_ advertising illegal?" (original article's exact words) ... to gp's (imiric) less restrictive example of "acceptable" advertising such as "product catalogs".
So when the person crafting a reply is using the article author's absolutist position of no ads, the distinction doesn't matter.
I wouldn't call a product catalog advertising, unless I'm forced to read it or receive it without asking. Otherwise it's my own choice to read about the products, which clearly isn't advertising.
You forget that people used to get spammed with catalogs, and you could opt-out of them with the postal service because it was such a problem. Receiving too many catalogs or magazines is absolutely a negative form of advertising, even though it is less of an issue today.
When Sears delivered the brand new Sear catelog to my door every year, all nicely wrapped in plastic with shiny images of brand new products, that sure as hell wasn't "pull".
I think the point is that they're opt-in advertising. You didn't pick up a book and find pages from the Sears catalog interspersed with the pages you were trying to read. You picked up the Sears catalog when you were considering a purchase and wanted to see what was available.
When you visit a ad-supported news website, you're opting in too... No one is forcing you to use that website versus it's ad-free subscription alternatives, it's just that most people have decided they'd prefer the former
The difference is that a catalog is advertising that the viewer actually wants to see. Ads on a news site are ads that the viewer merely tolerates because they go with the thing they want to see.
The appeal of a catalog is to interest a prospective buyer, not the general public. Once you start targeting the general public, you run into the issues the GP has identified.
What if we took the approach of creating a clear legal distinction between advertising companies and non-advertising companies?
For example, if you want to be an advertising company, there are limits on what and how you can publish (such as having to use pull instead of push channels), and you don't get to also try to be a product or service company. If you want to be a non-advertising company, then you can't publish advertising.
This seems effective and also a much easier scenario to envision for those who find legal restrictions on speech to be unpalatable or inconceivable. It is actually not that outlandish at all; rather it's well within the bounds of what we already do. We already categorize companies by function and apply all kinds of different rules (restrictions on where and when and how they can operate, requirements for licensing and registration, environmental standards, liability standards, taxation rules) to companies based on what they produce or what purpose they serve, and we already accept that doing so has societal benefits.
There is also plenty of precedent for regulations that discourage cross-category operations precisely to simplify enforcement and manage risk. Healthcare providers are separated from payers; drugs cannot also be dietary supplements; legal businesses can't combine with non-law businesses; and so on. Even if cross-category operations aren't completely banned, the rules create friction and deterrence that still has important effects.
> all of our communication channels are corrupted by companies who want to make us buy stuff
This is simply not true. You can buy or rent a server right now, run any kind of communication software on it that you want, and use that to communicate with anyone anywhere in the world, 100% ad-free. There are even pre-existing software stacks, like Mastodon, that make setting this up trivial.
I honestly find it disturbing that you don't appear to realise that you are asking for control over someone else's communication platform.
One person's desire for ignorance should not force that on everyone.
Don't want an add supported service? Don't use it. Don't want ads on TV? Don't watch it. Don't want ads on others property? Let them control the look of your property.
Lots of people like ads because it's how they discover movies, restaurants, better financial help, better doctors, new hobbies, and a world they'd not have found otherwise.
> I honestly find it disturbing that with all of humanity's progress and all the brilliant technology we've invented, all of our communication channels are corrupted by...
Honestly, you couldn't have said that any better. I always think exactly about that. Where we are today, the technology that we have at our disposal, and yet this whole machinery working 24hs non-stop to put these consumption ideas on our heads, cheap propaganda and useless stuff to manipulate us like puppets. Really disgusting.
> The current approach of companies pushing their products to everyone is how we got to the mess we are in today.
The most prosperous society ever known to man, a veritable wonderland of consumer choice and entrepreneurial opportunity that draws people from all over the world to study visit and move here. What a mess.
So we have some annoying advertising. Small price.
Having lived overseas, the US isn't a "veritable wonderland of consumer choice". There are 5 grocery store chains, for the great majority of the country there is one way to travel: car. At the store (Kroger), I can buy 2 kinds of salt on the shelves. Where is the "veritable choice"? It has been told in the advertising but the reality is very limited.
There are scores of grocery chains in the US, not 5. There are thousands of independent grocery stores. And literally hundreds of salt options, even at Kroger.
Seriously. Even the most basic supermarkets stock like at least 10 different kinds of salt. Iodized, non, kosher, sea, for grinding, packets, in disposable shakers, etc., and often a couple brands, e.g. Morton and Diamond. And a larger supermarket will have pink salt (Himalayan), various fancy sea salts, fleur de sel, flavored salts...
The "veritable wonderland" is big cities; come visit NYC or LA. Also affluent smaller cities. Elsewhere, it depends. You can reach parts of the consumption cornucopia by accessing sites like Amazon from basically anywhere in the US though.
Meh. This scenario does not seem broadly representative of the US to me. I mean, I don't live anywhere exceptional and near me alone there are Food Lion, Harris Teeter, Wegmans, Trader Joes, Aldi, and Whole Foods stores in addition to the grocery sections at Walmart and Target. And if one drives a little further, there are Publix, H-Mart, and several smaller local outfits - Compare, Li Ming's Global Mart, etc.
And just Food Lion alone has probably half a dozen to a dozen different salt varieties on the spice aisle.
I'm sure there are places in the US where choice is more limited, but that's the thing about a country of the size of the United States... you can find all kind of scenarios in different regions.
I've lived in a few overseas countries and consumer choice is absolutely limited. As a result you see a lot of people trying to import things they want that they can't otherwise get in their country.
If your hobby is cooking, good luck getting Arabic food ingredients in say Vietnam.
But in the US? If your own city doesn't have a store that carries them, you could easily order them online for next day delivery.
> So we have some annoying advertising. Small price.
Ha. Tell that to the millions of victims from false advertising of Big Tobacco and Big Pharma.
That prosperous society and veritable wonderland is not looking so great these days. Perhaps the fact that the tools built for psychologically manipulating people into buying things can also be used to manipulate people into thinking and acting a certain way could be related to your current situation? Maybe those tools shouldn't have been available to everyone, including your political adversaries?
> No money is exchanged when I promote my own product through my own channels
This is not really advertising, but it’s not really a problem either. People expect you to promote your own products and take it with the grain of salt they should. Besides, there are only so many channels you can possibly control.
> nor when I promote my friends products, whether I disclose it as promotion, or disguise it as my genuine unaffiliated opinion. Sometimes it really is a genuine opinion!
Sure. Maybe this is advertising that slips through. If all were down to is people advertising their friends’s products for no money then we would have eliminated 99.99% of the problem.
Further, if you have a highly influential channel, the cost of promoting a non genuine opinion about a friend’s product would almost certainly hurt your reputation, providing a strong disincentive to do such a thing.
> People expect you to promote your own products and take it with the grain of salt they should.
Similar thing happened with Amazon recently. They copied bestsellers and promoted their own products in their store leading to death of other companies. Now you are just making this loop in steroids. All the small companies would be forced to be sold to companies with eyeballs like Meta and Google.
> No money is exchanged when I promote my own product through my own channels, nor when I promote my friends products, whether I disclose it as promotion, or disguise it as my genuine unaffiliated opinion.
But this is not the vast majority of 'advertising' or where advertising causes so much harm. A single individual has much less power to manipulate a single other individual, let alone thousands of other individuals. It takes millions of dollars to hire people with specialized marketing skills to do that.
> The line is clear: is money being exchanged in order to promote a product? That's advertising.
The line is absolutely not clear.
Is ABC allowed to run commercials for its own shows?
ABC is owned by Disney. Is ABC allowed to run commercials for Disney shows? Is it allowed to run commericals for Disney toys?
Can ABC run commercials for Bounty paper towels, in exchange for Bounty putting ads for ABC shows on its paper towel packaging?
Literally no money is being exchanged so far.
I'm familiar with a lot of gray areas that courts regularly have to decide on. But trying to distinguish advertising from free speech sounds like the most difficult free speech question I've ever come across. People are allowed to express positive opinions about products, and even try to convince their friends, that's free speech. Trying to come up with a global definition of advertising that doesn't veer into censorship... I can't even imagine. Are you suddenly prevented from blogging about a water bottle you like, because you received a coupon for a future water bottle? Because if you use that coupon, it's effectively money exchanged. What if your blog says you wouldn't have bothered writing about the bottle, but you were so impressed with the coupon on top of everything else it got you to write?
You can argue over any of these examples, but that's the point: you're arguing, because the line isn't clear.
I agree with the general thought - doing something like this would give giant mega corporations a huge leg up from verticals.
> Can ABC run commercials for Bounty paper towels, in exchange for Bounty putting ads for ABC shows on its paper towel packaging?
I was with you until this one
Under both IRS and GAAP rules, that's equivalent to money changing hands. So in a hypothetical "no money for advertising" world, that would be over the line.
ok, what if ABC buys a 55% stake in Bounty and puts ads for them because they are the same owner now? What if it's 10% stake? Can they claim (truthfully) they want to increase the value of their stock?
You're trying to make this sound very complicated but it's not. In this world without paid advertising, ABC can advertise their own shows. They cannot advertise things for other companies, whether they own them or not.
A network of TV stations could cross-promote across all stations. Yes, that would be unfair, but no more unfair than the current situation where whoever has more money can have their ads seen everywhere. Fairness between companies isn't the goal, it's less manipulation and noise for the rest of us.
There's an example of a TV station that already has to follow these rules: the BBC.
> it's less manipulation and noise for the rest of us.
That's not what would happen.
You'd just end up with diverse companies consolidating into single companies and advertising just as much as before, but for their own products in their own media properties.
Coca-Cola will merge with a movie studio and a television network and a billboard company to put its product placement and ads everywhere in properties it just simply owns. Probably merging with Proctor-Gamble or Unilever while it's at it.
BetterHelp will merge with a bunch of supplements companies and purchase a bunch of top podcast studios, so top podcasts will continue to advertise the same exact things as before.
And so on.
It's wishful thinking to suppose that companies wouldn't find ways around this. Advertising is that powerful and important that it'll be worth it to them.
> Except that shows aren't products, they're services, so they'd be exempt from this proposal.
What does that mean? What's a service in this definition? Surely not in the normal definition of a "service", as in health care or tech? Like is a movie a service too?
Or do you just mean something you get for free because it's a show on their own channel? What if you had to pay for shows ala carte?
I suggest reading https://en.wikipedia.org/wiki/Service_(economics). Some authors use the term "product" in opposition to "service", while others consider services to be a type of product. Not being clear about that distinction is one of the fatal flaws in imiric's proposal.
A show isn't made of matter. If you pay for it, you can't take possession of it or resell it later. If you, the buyer, aren't available at the time that it is provided, you get nothing of value out of the deal. These are attributes of services like surgery or internet connectivity, not products like antibiotics and computers. ("Health care" and "tech" are too vague to be useful.)
Getting things for free is not, as you imply, a usual attribute of services.
That makes even less sense than I thought. So things that "are not made out of matter" can be advertised. Like I can advertise YouTube, AWS, Netflix, pretty much 99% of online services, movies, a doctor practice as long as I just do diagnostics, landscaping as long as I just cut and clean. I just can't advertise anything where I'd hand you something "made out of matter". What kind of sense does that make?
> The line is clear: is money being exchanged in order to promote a product? That's advertising.
So that would exclude:
- listing your house, or car in the classifieds
- buying a sign for your business (ad discussed in other posts)
- buying a garage sale sign
- buying a for sale sign, or flyers for your house for sale
- paying a realtor to sell your house
- paying a reporter or professional reviewer to write a review. Even if they are paid by a newspaper/magazine/consumer report site, money exchanged hands for something that promotes a product.
- distributing a catalog
- paying a cloud provider or VPS provider or website hosting service to host a website that promotes your product
Also, what exactly constitutes a "product"? Does a service count? If not, that is a pretty big loophole. What about a job position? Or someone looking for employment?
And finally, advertisement in some form is kind of important for making customers aware your product exists. Word of mouth isn't very effective if you don't have any customers to begin with. I would expect removing all advertising to have a chilling effect on innovation and new businesses.
To be clear, I think the current advertising environment is terrible, and unhealthy, and needs to be fixed. But I think that removing all advertisement would have some negative ramifications, especially if the definition of an ad is too simplistic.
It's remarkable that you put all that thought into coming up with holes in my one-line argument, and no thought into steelmanning it.
Since we're coming up with hypothetical laws and loopholes, here is a simple addendum to my original argument:
- Only applies for companies, and only to those with more than $100,000 ARR.
There. That avoids penalizing most of the personal advertising scenarios you mentioned. Since laws are never a couple of sentences long, I'm sure with more thought we'd be able to find a good balance that prevents abuse, but not legitimate use cases for informing people about a product or service.
Again, the goal is not to get into philosophical discussions about what constitutes advertising, and banning commercial speech, or whatever constitutional right exists. The goal is to prevent companies from abusing people's personal data, profiling them, selling their profiles on dark markets, allowing mass psychological manipulation that is threating our democratic processes, and in general, from corrupting every communication channel in existence. Surely there are ways of accomplishing this without endless discussions about semantics and free speech.
But, as I've said in other threads, this is all wishful thinking. There is zero chance that the people in power who achieved it by these means will suddenly decide to regulate themselves and kill their golden goose. Nothing short of an actual revolution will bring this system down.
> And finally, advertisement in some form is kind of important for making customers aware your product exists.
Agreed. In the olden days before digital ads, product catalogs worked well. Companies would buy ad space in specific print media, and consumers interested in buying a product would consult the catalog for the type of product they're looking for. Making ads pull rather than push solves this awareness problem proponents of advertising deem so important. The reason they prefer the push approach is because it's many times more profitable for all involved parties. The only victims in this system are the people outside of it. The current system is making a consumer of everyone every time they interact with any content, when the reality is that people are only consumers when they're actively looking to buy something. Most of the time we just want to consume the content we're interested in, without being sold anything. It's the wrong approach, with harmful results, and the only reason we stuck with it is because it's making someone else very rich. It's absolute insanity.
Publishing factual information in a place people expect to find it is not advertising.
Listing a house for sale on an agent’s website: not advertising.
Promoting that listing or the agent on the home page of a local news site: advertising
etc…
Some cases will be harder, all are decidable. We are talking about law not code, so there’s no need for a perfect algorithm, the legal system is designed precisely to deal with these sorts of question.
Exactly. You're paying a realtor to promote your house, including on their site, to sell it.
Zero difference from hiring a TV channel to promote your product, on their channel, to sell it.
Which is why trying to define advertising in a way that bans it is not simple at all.
GP says "Publishing factual information in a place people expect to find it is not advertising."
OK. Now the realtor adds a blog. They start publishing news about the real estate business. With listings mixed in. Congrats, you've got a newspaper with ads for homes. Are you ready to say the realtor can't publish news? Isn't that censorship?
Also, home listings aren't "factual". They're promotional. They focus on pros and omit cons. They have photos that hide the ugly parts. They're ads for homes, period.
Surely there is a difference between me (private person ) selling my 1 car/house or company Y advertising their latest car model (they want to sell 1000ds).
Yes, there's a difference in the number of items you're selling.
There isn't a difference in terms of the fact that it's advertising a sale. Nor is it relevant if you're doing so personally, as a sole proprietor, as a partnership, as an S corp or as a C corp. Advertising something for sale is advertising something for sale. Ads are ads.
Also, on the realtor's site they're listing hundreds of homes. Not any different from your local car dealership advertising their hundreds of vehicles. They're both corporations listing ads.
> The line is clear: is money being exchanged in order to promote a product? That's advertising.
Let's say I have a journal. It costs money to subscribe. It covers a topic that many college students also study.
Can I give the school a free copy? Can I give the teachers one? Can I give the students one? Is this advertising? When does the amount of "value" become offensive?
> surfacing the dark data broker market and banning it altogether.
This is why this has become a modern problem. I can live with erring on the side of free speech when it comes to advertising, but there is no side to err on when it comes to analytics and targeting.
The fact that the boundary can be a bit blurry does not prevent it to be useful. Yes there may be corner cases to thunk about ans that can vary, as with all laws. It's bot perfect but its better than current out of control situation.
So is fraud, libel, extortion, sexual harassment, impersonating a police officer, perjury, incitement, performing a stage play without a license from the writer, etc. but this hasn't stopped congress from passing laws to abridge the freedom of these particular kinds of speech. It's quite clear that the "freedom of speech" referenced in the 1st amendment pertains to expressing one's own sentiment, and that this is not the same as expressing something one is paid to express. The mental gymnastics necessary to convince oneself that spending money is protected speech are likewise ridiculous.
Legislatures have tried to pass laws regulating commercial speech in various ways and the track record is generally that they get their asses handed to them by the court, because this is basically the most protected right in our system.
It's fine if everyone here wants to fantasize about some alternative system, but "we make advertising illegal" is not something that can happen in our system of governance.
Courts consistently interpreting a law wrongly is cause for amending said law to clarify its intent. Amending the constitution is certainly something that can happen within the system of governance as evidenced by the fact that we are discussing an amendment to it. It's just a law, not a religious document. Granted, clarifying the 1st to read more like Madison's draft is unlikely to happen anytime soon for cultural reasons.
When it's literally 100 years of consistent jurisprudence this kind of argument loses some of its teeth. Liberal courts, conservative courts, modern courts, old courts, they all seem to agree on this point.
> Legislatures have tried to pass laws regulating commercial speech in various ways and the track record is generally that they get their asses handed to them by the court,
I mean, no, legislatures (both Congress and the states) successfully limit commercial speech all the time, which is, for instance, why no one in Gen X has seen or heard a TV or radio ad for cigarettes in the US when they were old enough to purchase them.
> but "we make advertising illegal" is not something that can happen in our system of governance.
Broadly banning "advertising" (under almost any plausible definition that would be reasonably accord with common use) would probably fall afoul off the 1st Amendment as it is today, but our Constitutional system of government includes provision for changing any feature of the Constitution (nominally, except the equal representation of states in the Senate, but that restriction neither protects itself from being amended out, nor protects all the functions of the Senate from being amended out and the equal representation being at zero seats per state, so it is more of a symbolical than substantive restriction.)
The networks themselves wouldn't be banned, but they wouldn't be permitted to endorse or give airtime to a candidate in exchange for money, I'd assume is the idea.
They're not endorsing candidates in exchange for money. They do use their money to run their networks, which they use to promote certain candidates and positions.
Re: "The line is clear: is money being exchanged in order to promote a product? That's advertising."
What if they are running the story on local ocean tides or soup kitchens? They are doing this to sell more newspapers or more airtime for advertisers.. does this mean there is an "exchange for money" under your rule?
Well, I'd argue that all stories don't fulfill the same purpose, and that such a small story doesn't have enough importance to the broader public for there to be an "exchange for money" of the type I've described.
But also, it seems pretty clear that political stories specifically generate massive cash flow for media, through clicks and "online engagement", the spectacle of debates, video of gaffes, and so on. I'd assume that is why the political "season" lasts longer and longer? The politicians certainly take advantage of this and use it to their ends. The media seem not to care as long as they continue to get "paid", in their way, and have access.
What if the candidates did it for free? Aren't they already, because the networks are platforming them? Wouldn't the mere fact of showing a candidate be an endorsement in itself?
Simply make it illegal to base the choice of what ad to show on any data derived from the person accessing the content. The same content accessed by different people from different locations should have the same ad probability distribution. You can still do old-school targeting by associating static content with certain types of ad a priori, as long as the shown content is independent of the user and not generated from any user data.
I'd happily support that but the harms of advertising go beyond the problems of surveillance capitalism so heavily restricting ads seems like a good idea on its own.
I'm wondering if it's possible that the reality might be working the other way around than perceived. Could there be steaming can of worms that modern rampant commercial advertising is venting and holding down?
Studio Ghibli made ~$220m on Spirited Away. What if they made $2.2T, is the quality going to go up, or down? And, would there be less ads, if no one made even $2.2 on them?
You're presenting an idea here by means of a lot of implicit leaps, and I don't even know where I'm supposed to leap to at each stage. It's like a logic game that I'm failing at.
What's the connection between adverts and the amount of money Ghibli made on their best-loved movie?
Hmm, maybe none, maybe you're using Ghibli as a metaphor for products that make money through adverts. And maybe the implied answer to the next question is that their next movie, The Cat Returns, would have been higher quality if they had made even more money on Spirited Away. So what you could be saying is that crippling the ad industry would lead to lower quality products, without even much reducing the number of (less effective) adverts that get made.
That's one way to read what you said, but I feel like I got it wrong.
No, I'm saying what I had said in the first paragraph of my comment. I'm saying, the reward might not be the fuel, but it could be fire retardant, and you might not want to cut it off.
People getting paid to do things do worse than otherwise[1]. They do better when not paid. The quality of work often gets worse when they get more. It's well established. As counterintuitive as sometimes it seem to be.
What I'm essentially saying is, if you think people are right now getting paid to do something bad to the society(e.g. ads), you might want to keep them hooked and tied to the money and not to something else, like advertising for its own sake.
Fear the work of unpaid ad execs! They won't stop making adverts, it's what they live for, money or no money! The adverts will continue to be made, but now they will be made for love, and they will be extremely high quality! And if you think ordinary adverts are bad, wait until you see what adverts are like when they come from the heart!
I wonder if I should point out that your link says that it's when people stop being paid that quality declines. However, if "ads for ads' sake" became a thing, it would presumably look like propaganda, in support of whatever the advert-artist personally cares about.
> Someone I know mentioning a product because they want to recommend it to me? Not advertising.
Except that it is, and it's why social media is so important for marketeers; the best kind of advertising is word-to-mouth, so generating discourse about products is big business.
Anyway, without strict legislation and tight controls on social media / chat / RL, how would you know whether they would be getting paid or not?
It's a legal and / or philosophical conundrum, not to mention even more of a legal whack-a-mole than it already is.
> is money being exchanged in order to promote a product?
So if I paint my store front's sign myself, I'm good, but if I pay a signwriter to paint it, it's illegal?
I guess I better become "friends" with a signwriter, so that they don't mind making a sign or two for me "for free". And so that I don't mind giving them a widget or two from my store sometime in the future.
Most likely you paid someone to make the sign, and someone else to put it up. Even if you made and installed the sign yourself, you paid for the materials.
I am thinking outside blackboard ones, where owners write message in chalk [0] - they don't pay anyone to write the words, nor do they pay anyone to "install" it (= take it out).
I suppose the sign itself must be paid for... but many eateries are using the same signs for menus, so if owner re-purposed one of the menu signs, is there money involved? Or does owner have to dig in garbage bins to find the blackboard for free? What about writing messages straight on the wall? What about printing signs on the printer your own and taping them to the wall?
Now, don't get me wrong, I think it would be an overall improvement if those professionally-made outdoor signs get replaced by artisanal handwritten (or at least handmade) ones, but I don't think that this is what the original idea was about.
Commercial speech is also widely recognized to have lesser First Amendment protection than personal, political, or ideological speech, and there are cases of advertisers losing in court, c.f. Spann v J.C. Penney, as well as decisions that explicitly limit the First Amendment protections of commercial speech.
Trying to ban all advertising of course wouldn’t get anywhere (especially under the current SCOTUS), and the article’s author clearly hasn’t really thought through the implications. But there is a legal door that is ajar, in the Central Hudson test, and could potentially be widened by arguing that some classes of today’s advertising are against the public interest; the First Amendment is already not blanket covering all commercial speech.
There is no conceivable Supreme Court configuration that would uphold a ban on advertising.
Meanwhile, even the original Central Hudson test --- if commercial speech concerns lawful activity and isn't misleading, the government (1) needs a substantial interest and (2) must narrowly tailor the restriction --- was inhospitable to the sentiment in this blog post. But Central Hudson has as I understand it gotten more restrictive, not less; for instance, Sorrell, which was a bipartisan decision, applies heightened scrutiny to regulations under Central Hudson.
You can keep cigarette ads out of Highlights for Kids. But you're not going to be able to keep Nike from buying up ad inventory, and you'll certainly not be able to regulate political and cause advertising (and "propaganda").
Oh I totally agree, a blanket ban on advertising isn’t remotely realistic, ever. It’s a silly idea, and I doubt what most people want. I’m just sayin’ the Central Hudson test makes commercial speech less protected than, say, political rants, and it could in theory be used to reduce protections, even if that’s not happening right now. Either way, banning ads and free speech protections are two somewhat separate issues, ads could be legal without having any free speech status.
Yes, the purpose of "free speech" is to allow the spread of ideas. The purpose of any particular piece of speech (a book, a pamphlet, a poster, a sign, a rally, a concert, anything) is to spread an idea. The idea in that particular piece of speech.
Do you want to preserve free speech but ban speech that tries to spread an idea? Your comment would be banned because you're trying to spread that idea.
Commercial speech is a legal term for speech that promotes commerce [1].
I mean, if you're going to make up your own First Amendment jurisprudence. But it would be worth reading the line of cases from Schneider through Sorrell (there's a lot of them) to get the reasoning of several generations of jurists on why it's not this simple.
Maybe you should post a proposal for a law that's a little more specific than "is money being exchanged in order to promote a product? That's advertising." Then we can see if it is in fact possible to prevent 99%, or for that matter 50%, of the harm that comes from modern advertising, without outlawing other things.
Let's consider toomim's three examples: "would you like to try a rosé with that dish? It pairs very well together," giving out free samples, and putting a sign up on your business that says the business name.
The first case seems like it would straightforwardly be illegal under your proposal if the waiter is an employee (or contractor) who gets paid by the restaurant, because the restaurant is exchanging money with the waiter in order to promote the rosé, which is a product. It would only be legal if the waiter were an unpaid volunteer or owned the restaurant.
The second case seems like it would straightforwardly be illegal under your proposal if the business had to buy the free samples from somewhere, knowing that it would give some of them out as free samples, because then it's exchanging money with its supplier in order to promote its products (in some cases the same product, but in other cases the bananas and soft drinks next to the cash registers, which people are likely to buy if you can get them into the store). Also, if one of the business's employees (or a contractor) gave out the free samples, that would be exchanging money with the employee to promote a product. You'd only be in the clear if you're a sole proprietor or partnership who bought the products without intending to give them away, changed your mind later, and then gave them away yourself rather than paying an employee to do so.
Putting up a sign on the business that says the business name is clearly promoting products, if the business sells products. Obviously the business can't pay a sign shop. If the business owner makes the sign herself, that might be legal, but not if she buys materials to make the sign from. She'd have to make the sign from materials unintentionally left over from legitimate non-advertising purchases, or which she obtained by non-purchase means, such as fishing them out of the garbage. However, she'd be in the clear if her business only sells services, not products.
A large blanket loophole in the law as you proposed it is that it completely exempts barter. So you can still buy a promotional sign from the sign shop if you pay the sign shop with something other than money, such as microwave ovens. The sign shop can then freely sell the microwave ovens for money.
In this form, it seems like your proposal would put at risk basically any purchase of goods by a product-selling business, except for barter, because there is a risk that those goods would be used for premeditated product promotion. Probably in practice businesses would keep using cash, which would give local authorities free rein to shut down any business they didn't like, while overlooking the criminal product-promotion conspiracies of their friends.
So, do you want to propose some legal language that is somewhat more narrowly tailored? Because a discussion entirely based on "I know it when I see it" vibes is completely worthless; everyone's vibes are different.
I think the language is OK, it’s just that you are consistently ignoring “in order to promote a product” clause.
The first case is legal because waiter gets paid by the restaurant to serve meals, not to promote the specific brand of rose wine. Only illegal if the waiter has another, secret contract with the wine manufacturer to “recommend” specific wine.
The other two cases are legal because the money exchanged in order to receive goods. The fact the goods are then used to promote something is irrelevant.
I wasn't ignoring it; I specifically criticized it in detail. Your interpretation does not seem defensible or even coherent, but maybe you could propose less ambiguous language that clearly lays out the interpretation you have in mind. That way we can evaluate its tradeoffs.
I’m confident from PoV of any judge, the waiter in question gets paid for serving meals.
Similarly, a man purchasing physical stuff is giving money in exchange for the goods as opposed to advertisement services. Classic contract of sale of physical goods, nothing even slightly ambiguous.
It’s the same with ordering a sign. “Exchanging money in order to promote a product” doesn’t happen because manufacturing the sign is not a promotion. To promote something using a sign, you would need to post the sign in a publicly visible place. Manufacturing a sign and giving it to your client in private doesn’t promote the product shown on the sign.
I'm not a lawyer, nor is it my job to come up with loophole-free regulation. People in those professions can think hard about this problem, and do a much better job than some layperson who thought about it for a few minutes on an internet forum. Even for them, though, coming up with laws without loopholes that are not too restrictive in legitimate situations is often impossible, so it's ridiculous that you would expect the same from me.
That said, after thinking about it for a few more minutes, I can think of one simple addendum to my initial criteria. I wrote about it here[1], so I won't repeat myself.
It's asinine that this discussion is taken to extreme ends. We don't need to ban all forms of advertising and get into endless discussions about semantics and free speech in order to stop the abuse of the current system. There is surely a middle ground that does it in a sensible way. The only reason we don't fix this is because the powers that be have no incentives to do so, and the general population is conditioned and literally brainwashed to not care about it.
Your addendum, "Only applies for companies, and only to those with more than $100,000 ARR," doesn't help at all; it still prohibits the three examples in most cases and still has the barter loophole.
If you can't figure out how to express what you want in such a way that it doesn't immediately collapse upon the most casual attempt at critical thought, the problem probably isn't that the population is brainwashed. It's probably that what you want is to eat your cake and still have it, a logical contradiction that could never exist in any possible world.
You seem to think that the law is something that can be delegated to the lawyers. But in fact the law balances conflicting interests. If you don't participate in defining it, your interests won't be taken into account. A law written by lawyers without outside input will only serve the lawyers' interests, not yours.
It's not the role of citizens to come up with regulation that protects them. It's not their role to protest or even acknowledge that they are being abused. It's the role of governments and law makers to ensure the safety of their citizens. This is literally what we elect and pay them to do.
If you can't see how the current system is harming not just individuals, but the stability of governments and our democratic processes, and the role of the advertising industry in all of this, then nothing I nor anyone else says can convince you otherwise.
You seem more interested in scrutinizing hastily put together arguments by laypeople on an internet forum, than acknowledging the issues put forth, and the fact that fixing this deeply rooted problem will require multi-faceted solutions over a very long period of time.
I agree that the current system is harmful in exactly the ways you describe, but I don't see you contributing anything towards solving those problems or even understanding what a solution would consist of. Instead you are criticizing policymakers for failing to satisfy your preferences even though you can't articulate them coherently yourself.
This:
> It's not the role of citizens to come up with regulation that protects them. It's not their role to protest or even acknowledge that they are being abused. It's the role of governments and law makers to ensure the safety of their citizens.
is not a description of the relationship between citizens and a democracy. It's a description of the relationship between subjects and a monarch or dictator—a relationship which invariably results in serious abuses of those subjects.
If you don't have a coherent idea of what you want, nobody can give it to you.
The line is clear: is money being exchanged in order to promote a product? That's advertising.
Someone I know mentioning a product because they want to recommend it to me? Not advertising.
Giving out "free" samples? Presumably someone is being paid to do that, so advertising.
We can later quibble about edge cases and how to handle someone putting up a sign for their business. Many countries have regulations about visual noise, so that should be considered as well.
But it's pretty easy to distinguish advertising that seeks to manipulate, and putting a stop to that. Hell, we could start by surfacing the dark data broker market and banning it altogether. That alone should remove the most egregious cases of privacy abuse.