When Advertising is Action: Clarence Thomas Channels Hannah Arendt and Friedrich von Hayek

In Lorillard Tobacco Company v. Reilly, the Supreme Court struck down a Massachusetts ban on tobacco advertising on First Amendment grounds. In his concurring opinion, Clarence Thomas writes:

The State misunderstand the purpose of advertising. Promoting a product that is not yet pervasively used (or a cause that is not yet widely supported) is a primary purpose of advertising. Tobacco advertisements would be no more misleading for suggesting pervasive use of tobacco products than are any other advertisements that attempt to expand a market for a product, or to rally support for a political movement. Any inference from the advertisements that business would like for tobacco use to be pervasive is entirely reasonable, and advertising that gives rise to that inference is in no way deceptive. [Emphasis added.]

There’s so much—from the history of political thought, conservative thought, and free-market libertarianism—packed into these three sentences, one might be forgiven for missing the breadth and power of what Thomas is arguing.

First, notice the explicit comparison, the affinity, that Thomas draws between commercial advertising for a commodity or product and political advocacy and action for a cause.

Part of this comparison has to do with the ongoing effort by constitutional conservatives to draw ever wider First-Amendment boundaries around commercial speech: the more commercial speech can be elevated to the status of political speech, the stronger First Amendment protection it will have. In 44 Liquormart v. Rhode Island, Thomas had written:

I do not see a philosophical or historical basis for asserting that “commercial” speech is of “lower value” than “noncommercial” speech.

In Lorrilard, Thomas pursues that argument, insisting that commercial speech is of equal status with noncommercial speech and thus entitled to similar levels of First Amendment protection.

But there is something else going on with those clauses I’ve bolded above: “a cause that is not yet widely supported…or to rally support for a political movement.”

Thomas is here claiming that advertising is similar to political advocacy and action. Like the political activist or organizer who seeks to turn an unpopular, minority cause into a mass movement, the advertiser seeks to turn a niche product into a mass commodity.

In his Constitution of Liberty, Hayek makes a similar argument, claiming that throughout history, it has been the great men of money and property who have subsidized not only the development of mass commodities—turning previously expensive luxuries, which had been confined to the wealthy elite, into mass products and mass tastes—but also the cultivation of heterodox beliefs and minority persuasions.

Hayek identifies this process in the economic realm—

The important point is not merely that we gradually learn to make cheaply on a large scale what we already know how to make expensively in small quantities but that only from an advanced position does the next range of desires and possibilities become visible, so that the selection of new goals and the effort toward their achievement will begin long before the majority can strive for them. If what they will want after their present goals are realized is soon to be made available, it is necessary that the developments that will bear fruit for the masses in twenty or fifty years’ time should be guided by the views of people who are already in the position of enjoying them.

—as well as in the noncommercial realm of culture, ideas, morals and politics, where significant investments of money are required to support causes and beliefs that otherwise would have little material support:

The importance of the private owner of substantial property, however, does not rest simply on the fact that his existence is an essential condition for the preservation of the structure of competitive enterprise. The man of independent means is an even more important figure in a free society when he is not occupied with using his capital in the pursuit of material gain but uses it in the service of aims which bring no material return.

What little leadership can be expected from the majority is shown by their inadequate support of the arts wherever they have replaced the wealthy patron. And this is even more true of those philanthropic or idealistic movements by which the moral values of the majority are changed.

It is only natural that the development of the art of living and of the non-materialistic values should have profited most from the activities of those who had no material worries.

When I first proposed this line of argument about Hayek, it generated a considerable controversy. What perhaps got lost in that controversy was the notion that for theorists like Hayek, economic action can be understood as a transposition of—or at least bears a correspondence to—political action. This, I’ve argued more generally, is part of a larger move in modern thought, whereby the economy becomes the sublimated field of classic or heroic political action.

It’s interesting to see Clarence Thomas, who claims to have read Hayek (one of his biographers corroborates that claim, only he references Road to Serfdom rather than Constitution of Liberty), channeling a similar notion: that commercial action—in this case, advertising—should be understood in relationship to, or as a variant of, political action.

It puts his First Amendment commercial speech jurisprudence in a different light from how it is conventionally understood: not simply as an attempt to carve out more areas of the market for immunity from government control, but also as an effort to recreate, in the realm of the economy, a sphere for a particular kind of political action.

But there’s an additional element in Thomas’s argument here that bears noting.

The advertiser, for Thomas, is like the political actor insofar as she must use the instruments of persuasion and illusion to achieve her ends. What inspired Thomas’s claim, quoted above, was the State of Massachusetts’s argument that, according to Thomas, “the simple existence of tobacco advertisements misleads people into believing that tobacco use is more pervasive than it actually is.” It was this claim by Massachusetts—that advertising generates an illusory sense of tobacco’s popularity and widespread use—that led Thomas to make his comparison between advertising and political action.

Though Thomas does not explicitly spell this out, the comparison might go like this: Every organizer, activist, or political leader knows that she launches her political cause from a starting point of weakness. The very reason she must turn her issue into a cause is that not enough people support it and she needs that support if she is going to see that causes’s triumph. She has to generate that support. Part of the way she will generate that support is by claiming that in one way or another it’s already there: the masses are silently supportive of her position but are too afraid to act on its behalf; they will be supportive, once they see other people rallying around it. Inevitably, the political organizer or activist will try to nudge that support along, by telling their potential followers that all of their comrades are already out in the commons; they must merely join them to see.

When the First Amendment protects political speech—including, importantly, political speech that is false—it is precisely, Thomas seems to be suggesting, this dimension of speech that lies at the boundaries between fact and fiction that it is protecting.

At the heart of this kind of political action, then, is a straddling of that elusive space between what is, what is not, and what might be. Machiavelli understood that; Hobbes understood that (Leviathan’s massive power is generated in part, as I’ve argued, by healthy and alternating doses of illusion and reality); Nietzsche did, too.

In the modern era, however, no theorist explored that dimension of political action—in both its toxic and tamer variants—more than Hannah Arendt. The toxic variant was to be found in all manner of totalitarianism, as well as in the lies of Richard Nixon and Lyndon Johnson. The tamer variants, however, were found in that dimension of action that involved elements of novelty and initiation, in an appreciation that politics is not the realm of Platonic Truth, a deep structure of what is, beneath the surface or behind the scenes, but of multiple and dissonant perspectives on stage, which provide an occasion for persuasive speech and artfulness.

Though Arendt was not nearly as hostile to factual truth as some would have her be, she did offer, between the lines of some of her essays, an appreciation of the art of the liar, for she saw that art as related, in some ways, to the political arts more generally.

The liar is an actor, in the literal sense, and politics, as Arendt reminds us, is a theater of appearances.

But the liar is also an actor in the political sense: she seeks to change the world, turning what is into what isn’t and what isn’t into what is (this is the part that made Arendt so nervous, as it reminded her of the totalitarian ruler). By arraying herself against the world as it is given to us, the liar claims for herself the same freedom that the political actor claims when she brings something new into the world: the freedom to say no to the world as it is, the freedom to make the world into something other than it is.

It’s no accident that the most famous liar in literature is also an adviser to a man of power, for the adviser or counselor has often been thought of as the quintessential political actor. When Iago says to Roderigo, “I am not what I am,” he is affirming that the liar, the dramatic actor, and the political actor all subscribe to elements of the same creed.

The advertiser operates in a similar realm between truth and illusion. She, too, seeks to use the arts of illusion to create new realities. Thomas seems to be emphasizing that dimension of the advertiser’s art.

Whether and how he thinks it relates to these other political arts—Is it meant to be a substitution for those political arts, such that the First Amendment, in protecting commercial speech, finds or identifies a new realm of political action in the sphere of the economy?—remains to be seen.


  1. ronp June 10, 2016 at 2:29 pm | #

    The planet would really be a more attractive and less stressful place with highly limited commercial speech — http://www.amusingplanet.com/2013/07/sao-paulo-city-with-no-outdoor.html

    Browsing the web these days without an ad blocker is really terrible too.

  2. Roquentin June 10, 2016 at 4:06 pm | #

    “what is into what isn’t and what isn’t into what is ”

    Grygory Lukacs (whom I’m pretty sure Arendt would consider totalitarian) makes a similar point in “History and Class Consciousness” but not in terms of truth and falsehood. In his Hegelian reading of Marxism, it’s not just that theory should be made to fit material reality (a kind of vulgar materialism), but that reality must also be made to fit theory and ideas. In short, ideas matter, and to get really Hegelian part of the nature of consciousness itself is the ability to negate what is and to formulate ways to do so. I’m also fairly sure Lukacs wrote this to identify that people play a much larger role in history, while still retaining a thoroughly Marxist perspective.

    There’s actually a lot of unwittingly Marxist points to the arguments of Clarence Thomas and right-wingers in general. When I saw connecting commercial speech with political speech, the first thing I thought was “Just as the bourgeoisie monopolizes the production of commodities, so too do that monopolize the production of ideas.”

  3. David Jacobs June 10, 2016 at 4:45 pm | #

    The sort of “action” Hayek prioritizes is necessarily practiced by economic elites. The owner of property is apparently entitled to more action than anyone else and every exercise of this privilege creates value. Ordinary people can depend upon the largesse of the rich; anything legitimate among their wants the elites will provide.
    God forbid that the nonrich aspire to practice action in a sphere accessible to them.

  4. Evan Neely June 10, 2016 at 6:55 pm | #

    Love how the actual creators of the arts Hayek supports usually have little or no money, and throughout most of human history have been considered vastly socially inferior to those who do. I guess I shouldn’t be surprised. Most of conservative thought seems to be compliments conservatives pay to themselves and people like them.

  5. kevin June 10, 2016 at 7:48 pm | #

    So, ubermensch = economic titan who hides his will to power behind the veil of a corporation? Seems quite a degradation of the Nietzschean vision.

  6. Kallan Greybe June 11, 2016 at 1:58 am | #

    Actually, I think in this case liar is the wrong analogy. The reason commercial speech is considered slightly dubious is because it’s safer to call it bullshit. As Harry Frankfurt famously pointed out, the liar at least cares about the facts of the matter, we lie with at least one eye on the truth. Bullshit is dangerous precisely because it doesn’t care about truth or principle at all, not even in order to subvert it, and represents the most dangerous kind of speech: speech that’s designed purely to use other people for your own goals. In effect it’s the very opposite of political speech.

  7. jdonoharm June 11, 2016 at 2:14 pm | #

    Thomas seems to be ignoring the point that smoking is a very harmful activity and encouraging others to smoke is also a very harmful activity. I guess the harm that arises from restricting people’s ability to encourage others to participate in very harmful activities is much greater. I guess his handlers would rather sell cigarettes than encourage people to engage in healthier activities.

  8. jonnybutter June 11, 2016 at 11:41 pm | #

    Fascinating. I know I should read it again before I comment, but..arg, so stimulating.

    “I do not see a philosophical or historical basis for asserting that “commercial” speech is of “lower value” than “noncommercial” speech.”

    That’s because you’re a dipshit. Sorry Justice T. (btw, He was motivated to strategically leave out the word ‘necessarily’).

    An error of Thomas’ and Hayek’s argument is that it ignores that *motivations* driving advertising and/or political persuasion – nascent or otherwise – differ, and that that matters crucially. I know this is obvious, but it’s apparently not obvious enough, or perhaps too obvious. Motivation may not always matter quite as much in high level practical politics as we would like to think it does, but motivation always matters *crucially* to the professional full time liar, the political philosopher, the artist. What are you lying for? The motivation to make trillions shaving years off the lives of whole populations is quite different from the ones which drive the interest and will of a Machiavelli, for example. The goal, the motivation, is everything if you’re a full-time creative liar. The artist or philosopher is supposed to use lies to tell truths, while the advertiser and Frank Luntz use truth to tell lies.

    There’s always the goofy tension with Hayek and his imitators: that Rationalism will always tend to lead humankind astray….except for when they do it. Except for when *they* explain in great detail, via mountains of words, and w/allusions galore, precisely the right way to let things happen ‘naturally’. And there’s always a little quick slight of hand, where metaphors don’t really support what they seem to, but just kinda whiz by. There is a huckster quality to Hayek (who is obviously a hundred times better writer than Thomas).

  9. Glenn June 12, 2016 at 3:44 pm | #

    “Every year hundreds of the biggest marketers, agency heads, and all manner of people involved in advertising get together at the Association of National Advertisers’ annual conference. And every year, they vote on the best advertiser of that particular year. This year Barack Obama won with a pretty substantial 36% of the vote, beating out the two runners-up Apple and Zappos.com. Nike, Coors and Sen. John McCain filled out the bottom of the vote.”

    Here are the results:
    Obama 36.1%
    Apple 27.3%
    Zappos 14.1%
    Nike 9.4%
    Coors 8.7%
    McCain 4.5%


    • Glenn June 12, 2016 at 3:52 pm | #

      And: “We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors…and you, all of you, will be left to just study what we do.” — attributed to Karl Rove


  10. justin Schwartz June 13, 2016 at 12:34 am | #

    I would have thought that the most famous liar in literature is Odysseus. But this is a nit.

    Your essay made me think of another famous defense of lying in politics, that of Leo Strauss, obviously influenced by an interpretation of Nietzsche as well as Plato (Straussians are the only Plato scholars I know who give serious attention to the Noble Lie in the Republic), and one that unlike Nietzsche or Plato Thomas might have been exposed to, directly or otherwise. I wonder if this connection (to Strauss) is worth exploring.

  11. jonnybutter June 13, 2016 at 12:13 pm | #

    “Straussians are the only Plato scholars I know who give serious attention to the Noble Lie in the Republic”

    Oh boy, Strauss again.

    Yes, if by ‘serious attention’ you mean *inverting* everyone else’s understanding of it. Since life is short, I have both not read every single Plato scholar, nor especially every Strauss scholar (god forbid). For the same reason, I have also limited my reading of Strauss himself, for, as the proverb has it: a fool can throw a stone into the water that ten wise men cannot recover. Imagine if the fool at hand *deliberately* makes the stone harder to find.

    Strauss’ writing is often deliberately abstruse, and even deliberately misleading, which facts alone make him suspect as a philosopher (and maybe Strauss would have been comfortable with that). He wrote a whole book about ‘exoteric’ and ‘esoteric’ meaning in politico-philosophical writing, and – vulgarly – himself practiced what he described (but not in that book, presumably).

    Perhaps it’s unsurprising then that he and his groupies think that Plato also deliberately hides his real, i.e. esoteric, meaning – not so as to reveal truths, but indeed so as to *hide* them (in order to avoid retribution). They conclude, from dubious evidence, that ‘Republic’ is some sort of elaborate satire. That Strauss School are the only scholars/philosophers in 2k+ years to come to that conclusion doesn’t prove it to be wrong, but where’s the evidence? Good luck plowing through the alewives on that.

    After first reading a couple books about Strauss and his intellectual world by Drury, I knew I better read more deeply, reasoning that since both her prose and conclusions are so clear and unequivocal, there must be much more to the story In fact my deeper reading in this case has turned out to be an elaborate waste of time (since I am not a ‘professional’ philosopher).

    Drury is broadly right. I don’t necessarily agree with *her* political philosophy, but I haven’t found evidence that she has fatally vulgarized Strauss (as his fanboys always claim she has done). I think Strauss embodies a philosophical analogue to the saying, “Steal a little and they throw you in jail; steal a lot and they make you king’ – namely: bullshit a little and you get laughed off the stage; create a whole world of bullshit and you’ve founded a School.

  12. jonnybutter June 13, 2016 at 4:38 pm | #

    Justin: I wanted to preemptively apologize for my snotty tone above. I had just gotten up this morning and was grouchy.

    Corey has spent time on Nietzsche – producing work much more illuminating and productive than Strauss scholarship would be (IMO). But Leo does kind of hang around conservatism and post-modern politics like a bad aroma, so I totally understand why you would bring him up. He has been a subject of discussion here before.

  13. Chai T. Ch'uan June 14, 2016 at 12:01 am | #

    It is of course obvious that, were the determination as to which individuals in a given generation were to be “men of independent means” made randomly or meritocratically rather than by herediity, we’d hear a lot less of such nakedly Machiavellian folderol about the supposed “advanced position” of their morals and desires.

  14. Dave Pier June 24, 2016 at 9:20 am | #

    “. . . a larger move in modern thought, whereby the economy becomes the sublimated field of classic or heroic political action.” — This is just ringing in my head. Don’t think I’ve read a more succinct statement about neoliberalism as a culture or zeitgeist. Though I understand you’re talking about a historical trend that extends beyond the neoliberal era per se. I’m reading Wolin’s Politics and Vision to try to get a better grasp of where you are coming from. Thanks.

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