In short, BK used a Whopper analogy to try to explain the debate surrounding the FCC’s recent repeal of the net neutrality rules. This is interesting, first, because it adds a new and unexpected voice to the net neutrality discussion. Tech companies, of course, are going to weigh in on the net neutrality debate, although the major players will apparently be less affected by the change than some might expect. But the fast food industry’s interest in net neutrality is not as clear.
That brings me to the second reason why BK’s video caught my attention. When I first watched it I wondered, is this commercial speech?
Whether the BK analogy is a fair presentation of the net neutrality issue is subject to dispute. After all, if they delivered Whoppers the same as they did now, but offered an alternative of delivering it to you immediately, rather than waiting two minutes, for an additional fee, would that be a bad thing? Some would argue that might be a better analogy for the “fast lane.”
But the question raised is whether this is commercial speech, per Central Hudson, and thus subject to regulation under the lesser standard of rational basis scrutiny.
Specifically, it’s what’s known as cause-related marketing, meaning for-profit entities affiliate themselves with a particular cause—here, net neutrality—to promote their image and products. And it looks like BK’s strategy is working. Yesterday, FCC Commissioner Mignon Clayburn, who opposed the net neutrality repeal, tweeted a photo of herself with a BK mug and said: “Had a craving for @BurgerKing during today’s @FCC Open Meeting. #NetNeutrality”
While this particular advertisement is related to net neutrality, a year ago Audi did its “daughter” commercial for the Super Bowl to virtue signal equal pay, something that flew better on the tube than it did in the factory because it’s a lot easier to manufacture the appearance of wokeness than to actually do it.
Commercial speech is fairly easily defined as speech that proposes a commercial transaction. That means offering the availability of goods or services, or their quality. But the infusion of politics into an advertisement creates a hybrid, where the subject is clearly political. So does that change the scrutiny from rational basis to strict?
The U.S. Supreme Court was poised to decide the question whether corporate image advertising is commercial speech in Nike, Inc. v. Kasky, 539 U.S. 654 (2003). In that case, the California Supreme Court had held, in a split decision, that Nike’s advertisements, press releases, and newspaper editorials addressing various “sweatshop” allegations were commercial speech. Ultimately, however, the Supreme Court dismissed the writ as improvidently granted because there was no Article III standing, and then the case settled.
On the one hand, BK’s ad looks commercial in that it’s motivated by a desire to increase profits. On the other hand, BK is commenting on an important matter of public policy, making this look like core speech.
What makes this tricky is that selling social responsibility is considered good business. Does Burger King really care about net neutrality? Does Audi really care about your daughter? Or are these political ads merely vehicles to take advantage of trends to tell consumers that they are companies who share their beliefs and are therefore the place to spend their money?
To be a bit more cynical, would it be sufficient to fashion commercial speech around any cause to wrap it in full First Amendment protection, even though it was a pure sham, a bold-faced effort to sell burgers by toying with your affections, an issue the company didn’t care at all about, but used because a focus group said they would supersize their fries if you backed up some cause?
The nature of what constitutes commercial speech is shifting. This comes on top of the question of whether commercial speech should be deemed an exception to the First Amendment’s requirement of strict scrutiny at all, but that’s a separate issue. If TV ads need no longer show you that you can run faster and jump higher, but that the people using their products include transgender mixed-race families, then are they still just proposing a commercial transaction by selling to your politics or are they making a real political statement?
The answer might depend on the subjective motivation for the commercial/political speech; if it’s just using political issues to sell burgers, then it’s proposing a commercial transaction by playing people’s emotions. The politics is the mechanism, not the point. But ascertaining motivation is risky business, and certainly chilling should sincere motivation be found to be avaricious.
It seems that the better answer is to presume commercials infused with politics are fully protected speech, even if they are really directed toward selling burgers rather than changing the world. First, the limited protection of commercial speech is, in itself, a problematic reading of the First Amendment, which nowhere says that proposing a commercial transaction is any less deserving of protection than any other speech.
Second, it is always a better policy to provide fuller constitutional protections in the face of doubt rather than limit them if there is any excuse to do so. The worst that can happen is the government is prevented from impairing rights that may fall outside the First Amendment’s fullest protection. Too much Constitution? Beats the hell out of too little. Err on the side of protecting rights.
Finally, what difference does it make what the subjective intent, even if such a thing can be said to exist for a corporation, might be? Every business wants to sell whatever goods and services it offers, but that doesn’t mean it can’t also promote causes or policies as well. The business still has to pick a side to back in order to virtue signal to the mob. Even if they’re totally pandering to their demographic, they made the choice to put their money behind a cause.
And remember the old Burger King commercials? That’s right, nobody does. They sucked. At least now we’re talking about Burger King, which is far more important to the company than net neutrality will ever be.