2
Gender bias aside, the court’s opinion illustrates quite clearly the idea that the
increasing pervasiveness of advertising messages has called into question the possibility
of “guarding time and space in society from advertisement and commerce” (Cross,
2000:113). It is characteristic for modern debates, however, to frame the problem in
terms of tensions between one group’s right of privacy and another group’s right to free
speech. From a public policy perspective, the question of the extent to which consumers
should expect protection from unwanted advertisement raises important questions. What
is the alleged harm resulting from intrusive commercial messages? Who are the groups
most in need of protection? How do we legitimate the authority of an agency to regulate
advertiser/audience interaction? Under what conditions should such regulating
interventions be performed?
The perceived imbalance of power between consumers and corporations speaks to
the broader issue of whether and where, in the context of a democratic marketplace of
ideas, society should ‘draw a line’ between individuals/groups and the uproar of
unwanted speech. Perhaps not surprisingly, the courts of law are sites of discursive
interaction where the two divergent demands, that of communicating ideas and that of
being let alone, come into sharp conflict. On the one hand, the free speech guarantees
expressed in the First Amendment are considered paramount to the values of the
democratic society. In most cases, a claim to constitutional protection of speech may
trump claims of alleged harm resulting from communication. On the other hand, although
constitutional law doesn’t codify explicitly a right to privacy, the courts have come to
agree over time that several guarantees in the Bill of Rights offer ‘penumbras’ from
Convention