BANNING THE JESUS SPOT
that there is less commercial freedom of speech than meets the television eye
FREEDOM of speech is one of those issues on which people are most inclined to kid themselves. They think they believe in it but in practice are happy to subject it to severe restrictions. It all depends on who is exercising it and for what purpose. For instance, there are many liberal intellec- tuals, the sort of people who might have given evidence in the Lady Chatterley case, who will fight to the death for the right to publish but will deny the right to advertise. They support artistic and political freedom of speech and deny commercial freedom of speech. Often the same people who are campaigning for the Freedom of Informa- tion Act (and who earlier supported the liberalisation of the obscenity law) are those most strongly in favour of banning advertisements for tobacco, alcohol and other products whose use or abuse is socially harmful. They back the BBC both in demanding complete freedom to broad- cast four-letter words, explicit sex, terrorist interviews and scenes of violence, and in denying commercial freedom of speech altogether. They apply quite different criteria of proof to the social consequences of television programmes and television advertisements. Some would simul- taneously scrap the Official Secrets Act and even the existing obscenity law, while banning all television commercials.
In the United States such irrational inconsistencies are made more difficult by the existence of the First Amendment, which prohibits legislative action limiting freedom of assembly, religion, speech and the press. In 1976 the US Supreme Court ruled that truthful speech proposing lawful commercial transactions was protected by the First Amendment. In this particular case, the State of Virginia had passed a law forbidding chemists to advertise the prices of prescription drugs. The court said the law was invalid. It subsequently invali- dated laws banning the advertising and display of contraceptives, advertising by lawyers and promotion by electricity com- panies.
On 1 July, however, in a five-to-four verdict, the court appears to have reversed the 1976 ruling. In Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, it upheld a law banning advertising of gambling casinos in Posadas in Puerto Rico, holding that even truthful advertise- ments for lawful goods and services may be restricted by the state in order to protect `the health, safety and welfare' of its citizens. Many promptly concluded that the First Amendment obstacle to Con- gress's following European countries and banning or restricting cigarette ads (and possibly ads for alcohol too) would now collapse. The American Medical Associa- tion, which wants a tobacco ban, promptly claimed that the ruling 'strongly supports the AMA's contention and the view of prominent constitutional experts that ban- ning the advertising of a harmful product, such as tobacco, is indeed constitutional'.
The arguments about advertising `harm- ful' products are familiar, almost thread- bare, but there are little discussed wider issues in restricting commercial speech. Almost unobserved, television has come to replace the public meeting as the main forum for the introduction of new ideas to a mass audience. To restrict access to television therefore is close to being the modern equivalent of restricting public assembly, as in the act of December 1819 (part of the Six Acts). It is widely and unthinkingly believed that only rich indi- viduals or bodies benefit from commercial access to television. In fact the chief beneficiaries of restricted television access, and still more of total bans, are existing entrenched institutions and ideas. In America, where political advertising en- joys full First Amendment protection, a newcomer to politics, who may have very limited resources, can establish a popular image on a local television station, solicit funds and so progress to a wide audience. The critical factor is not his wealth but his 'I found The Island of Dr Moreau particu- larly effective.' ability to raise money through the attrac- tion of his ideas. He builds up a following in broadly the same way as an unknown politician in the 19th century used public meetings.
The principle applies even more striking- ly to religious evangelism, which in the US also enjoys full First Amendment protec- tion. Religious innovators, like Jesus of Nazareth and Mohammed, usually started with informal, unauthorised public meet- ings, at which the popularity of their message was tested and modest funds raised to finance a basic organisation. A characteristic example was John Wesley, who addressed thousands of public meet- ings, using the freedom of the open air, long before his movement acquired its first Methodist chapel. Nowadays Wesley would undoubtedly have proceeded mainly through television advertising, if permit- ted, as the best and often the only means to reach the multitude. That has been the recent pattern in America, where religious evangelists enjoy full paid access to televi- sion and even run their own stations and channels. It is one of the main reasons why America, in contrast to Europe, is now enjoying a huge religious revival almost wholly outside the framework of the estab- lished Christian churches and sects.
In Britain, by contrast, political and religious advertising is unlawful on televi- sion, and political parties and religious groups are forbidden by law to operate cable stations or channels. The intended result is to keep out innovators and rein- force the position of the existing incum- bents. Indeed in politics we have the monstrous injustice that the established political parties enjoy free advertising while denying even paid airtime to any others. If political advertising had been lawful in Britain, the SDP might already have replaced Labour as the main opposi- tion party. Our restrictive television duopoly system is very much part of the `mould' the SDP has failed to break. The case of religion is not very different. The existing institutions, or rather the left- liberal elites which dominate them, effec- tively control all official religious broad- casting, and any other is strictly unlawful. The existing establishments thus prevent religious innovators from reaching the masses far more effectively than the 18th- century Church of England denied Wesley a platform by banning him from its premis- es. Ironically, an official ITV film earlier this year showed a Jesus in 1986, appearing in Glasgow, being suppressed by the police. In fact it would be the existing television duopoly legislation, the prog- ramme hierarchies (largely left-wing) and above all the hatred of the established religious bodies for any form of advertising which would today prevent Jesus from being heard. The truth is, freedom of commercial speech is the essential basis of a much more fundamental right — the right to propagate ideas.
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