The Free Press, Mankato, MN

December 4, 2006

Our View -- Advertising restrictions are not the solution

Are you sick of ads pushing sugared cereal, outrageously costly electronic gadgets and action figures tied to Hollywood movies to your children? Do you cringe a little when your youngster is watching TV and the Viagra ad comes on?

If you’re like most people, you probably think the number, tone and appropriateness of many ads are a bother you and your kids could do without.

The American Academy of Pediatrics isn’t just fed up with them. It wants Congress to crack down on advertising they say contributes to many kids’ obesity, anorexia, alcohol drinking and early sexual experimentation.

Seeking a solution in the halls of Congress might seem appealing to many parents, but it should be avoided.

The Academy proposes a list of regulations, from banning erectile dysfunction ads until after 10 p.m. to prohibiting junk food ads on any television show aimed at kids.

Government regulation of advertising has always been problematic, even when it is confined to small, easy to identify segments of commercial speech. The government does, for example, limit cigarette ads.

But the Supreme Court has, correctly we believe, been highly skeptical of limitations on advertising.

The court, in 1976, extended First Amendment protection to commercial speech when the state of Virginia attempted to prohibit the advertising of prices for prescription drugs.

Over the years, the court has solidified the protections, including a major case in 1996 in which the court unanimously rejected the government’s argument that advertising so-called “vice products” such as alcohol or gambling were entitled to less First Amendment protection.

The court set up a four-point test standard to help determine whether prohibitions on advertising might be allowable under the Constitution. The test includes deciding whether a product is harmful, whether the government has a substantial interest, and whether restrictions are excessive.

Creating a wholesale set of regulations on everything from sugar-coated cereals to Viagra would fail the test.

And unlike cigarettes, a confirmed addictive drug that causes a host of diseases, there is no such evidence of inherent danger in junk food and no scientific link that limiting advertising of Captain Crunch will reduce childhood obesity.

Besides the constitutional problems, attempts at broad regulation of advertising in today’s world would be ineffective and impossible to police. Kids often spend as much or more time on the computer and Internet as they do watching TV. With Web pages — and ads — streaming in from around the world, regulations would simply put other media at a disadvantage over competitors.

Parents have a right to worry about the advertising their children see, but it’s not the government’s job to be an obtrusive gatekeeper to shield kids from legal commercial speech.