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

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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.

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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.

To do that, we need to insist on some crucial distinctions.

First, we must stop confusing paid agents speaking for legal fictions with legitimate participants in First Amendment-protected debate. It's time we found courage to limit "speech" fabricated by hired guns, because it is nothing more than a form of marketing.

Indeed, this variety of paid "speech" is sometimes a form of violence against society itself. Violent storytelling has been part of every society since Homer's and the Bible's. But, as the writer Philip Green notes, it's too often now presented as an "aestheticised -- fetishised... source of visceral pleasure" that subordinates "all other content to the fascination with sumptuous violence."

These spectacles aren't calls for a Hobbesian war of all against all by some insurgent movement that, however dangerous, would have First Amendment protection. They're driven primarily by institutions that we as sovereign citizens created to serve our purposes. Our legislatures create the authority of corporate officials; we can stop them from using funds we placed under their control to destroy society's underpinnings.

Second, we need to re-energize the distinction between Constitutionally-protected free political speech and the legally permissible regulation of economic activity. The Supreme Court still recognizes a pale shadow of this difference, but in the Citizens United ruling and elsewhere it has come dangerously close to returning to the Gilded Age Lochner doctrine, which protected illegitimate economic power against the will of the people. The laissez-faire ideology of recent First Amendment jurisprudence mistakes economic regulation for censorship.

But cheating in markets destroys them as surely as cheating destroys sports. To keep boxing viable, we ban lead weights in gloves. Similarly, we've agreed that cigarette companies' association of smoking with the Marlboro man's manliness or Lauren Bacall's sexiness was cheating, not free speech. Today's marketing of guns repeats the same market-distorting errors, taking advantage of human nature to harm individuals, not protect them.

Violent-game producers assure gun manufacturers that repetitive advertising works. Then they piously tell courts and Congress that people's choices aren't influenced by repetitive absorption into trigger-pulling mayhem. Yet guns are flying off the shelves because aggressively marketed fantasies of death and social dissolution are displacing the cultivation of trust.

To keep markets honest, we can limit corporations from using profits to "buy" rule changes from legislators. We should do so by disallowing "business expense" deductions for corporate expenditures to influence public regulation of business or to influence public debate itself.

Video games' depictions of name-branded guns should be identified as paid ads and games should -- if the science warrants -- bear mental health warnings. And, like cigarettes and alcohol, guns themselves should be labeled with truthful disclosures of the actual number of people who commit suicide by their own guns, or have their guns turned against them in crime (as Adam Lanza's mother did), or have their guns stolen and used by criminals -- compared the trivial number who successfully fend off armed criminals.

Thinking outside the jurisprudential box we're in now will require invoking republican first principles against long-entrenched beliefs. For more than 150 years, many Americans profited from and rationalized slavery. We had to build a movement, fight a war, and create a "Second Reconstruction" to establish that all Americans are equal under the law.

Now a market-crazed regime is demoralizing too many young people and re-introducing habits of submission and repression incompatible with a republic. To fight that culture of death, we need a two-front war: against gun madness, surely, but also against mindlessly destructive marketing by corporations that, like governments, are instituted among us to secure the common welfare. When they do not, we may "alter or abolish" them -- and the rules that govern them.

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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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