To Stop Gun Violence, We Need to Remember We Can Regulate Corporate Speech and Advertising

There's a big difference between the free speech rights of individuals under the First Amendment and socially destructive marketing by corporations of products that kill.

Lucy Nicholson/Reuters

The Obama Administration's gun-control agenda is unlikely to prevail unless it's accompanied by a wrenching national struggle on two fronts: re-thinking the "well regulated" part of the Second Amendment, and curbing paid corporate gun glorification that undermines "free" speech under the First Amendment. As the president said in his inaugural address, we must re-impose rules of fair play on markets.

National Rifle Association vice-president Wayne LaPierre was right to charge that violent video-games such as Doom and Call of Duty seed social storms of fear and mistrust with gladiatorial spectacles that have been virtual instruction manuals for mass shooters in Colorado, Connecticut and Norway, who were inveterate players of those games.

But LaPierre didn't note that game producers had "a mutually beneficial marketing relationship" with the very gun manufacturers that support his own NRA. As the New York Times reported, the games' pictures of real guns come with embedded links to sales sites. Commercial speech like that can be regulated without violating the First Amendment.

Most of these games' content isn't free "speech" at all. Only the Supreme Court's confusion of free speech with anything that profit-driven corporations pay anyone to say or depict makes it seem otherwise. Regulating some games' marketing -- or even content -- would not suppress speech that a republic should protect.

The problem isn't that the profit-driven, legally constrained corporations driving violent entertainment are malevolent; it's that they're civically mindless. They're inherently incapable of free speech because the positions they take are just the result of fiduciaries -- directors, managers and public relations officers -- attempting to maximize stock value without regard to their own values, or anyone else's. Advances in manipulative advertising and a narrow focus on profit have made them runaway engines that can't be persuaded by rational or moral appeals to stop inciting exaggerated fears of armed home invasion, government takeovers, or fantasies of victory by gunplay. So long as the law and stock market demand they pursue profit, and selling guns and vengeance remains profitable, they'll keep doing it.

The danger we're facing isn't majoritarian censorship of noisy argument, transgressive art, or survivalists' politics. It's law promoting profiteers' own "sensor-ship," if you will -- their ever-more intrusive, intimate shaping of how people, especially of the immature and impressionable, view the world.

Rational and robust debate about the effects of gun violence is forced to compete with an eerily silent, algorithmically driven, massively funded effort to titillate and intimidate audiences -- bypassing our brains and hearts on its way to our lower viscera and wallets.

To fight the culture of death, we need a two-front war: against gun madness, surely, but also against mindlessly destructive marketing by corporations.

Only a few people take such messages literally, but the relentless depiction of "bad guys" who must be killed undermine hopes, along with republican politics. Lonely mass murderers may actually be attuned more acutely to these undercurrents than those who insist they don't matter.

We have every right to stop uses of corporate money that impair the public good, just as we can break up monopolies, require firms to pay for the pollution they cause, and stop misleading advertising.

Nothing obligates us to let the minions of marketing manipulate our deliberations using "other people's money," as Justice Louis Brandeis put it in referring to corporate abuses of politics. We can change corporate law -- without interfering with any actual citizen's speech -- to prevent customers' and investors' money from overwhelming democratic give and take by using it to pay for political and other messages driven only by the firms' bottom lines, without regard to other priorities that citizens might share.

Presented by

Jim Sleeper and Daniel J.H. Greenwood

Jim Sleeper, a lecturer in Political Science at Yale, is a former New York Daily News columnist and the author of The Closest of Strangers. Daniel J.H. Greenwood, professor of law at Hofstra, writes on corporate governance and coauthored a brief in the Citizens United case.

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