Trump's 'Apprentice' debut was a window into our future

Trump's 'Apprentice' debut was a window into our future
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As turning points in American history, historians usually cite the date America declared independence, or the date the Confederates fired on Fort Sumter, or the date the Japanese bombed Pearl Harbor, or the date President Kennedy was assassinated. Few, if any, have mentioned Jan. 8, 2004. But I believe that date will be looked upon no less than — if more ironically than — the others, as a major turning point. For on Jan. 8, 2004, Donald J. Trump made his debut as an executive on national television, hosting “The Apprentice” for the first time. 

That appearance signaled what has become the gradual convergence of political with commercial speech, of popular culture with populist politics. It was, it turns out, a window into the future that has become our dysfunctional present, where the “reality” of “Hillbilly Handfishin’” and “Trick My Truck,” of “Celebrity Apprentice” and “Life After Lockup,” meets the “real world” of tariffs and tax cuts, of “send her back” and “lock her up.” It’s all, more or less, a sales pitch now.

To be fair, the beginnings of this baleful state of affairs preceded Mr. Trump’s historic TV debut, and it is doubtful that the President had any idea where his reality star status eventually would lead. But the first indications of the direction our society would take had occurred already, a few years earlier, in the interplay between a very noisy, increasingly dominant aspect of American culture — advertising — and a relatively quiet backwater of American culture: the courts.

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For most of our history, so-called “commercial speech” enjoyed no First Amendment protection and could be regulated. Indeed, in the 1942 case of Valentine v. Chrestensen, Justice Roberts, writing for a unanimous court, stated that “the Constitution imposes no … restraint as respects purely commercial advertising.” The Supreme Court reinforced that view in 1951, in Breard v. Alexandria, stating that First Amendment protection does not apply to “solicitors for gadgets and brushes.” The distinction between commercial speech and political speech was treated by the court as essentially self-evident. 

In the ferment of the 1960s, however, the court began to encounter commercial speech that was relevant to issues bearing upon the public interest, and began to afford limited protection:  solicitations for religious causes, or civil rights activities, or social issues. Finally, in 1976, the justices threw up their hands, deciding in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., that “the free flow of commercial information is indispensable” in “a free enterprise system.” As the New York Times noted, “[i]t was only in 1976, in a case involving the advertising of prescription drug prices, that the Court found any First Amendment protection for commercial speech.  Before that, the Court had treated advertising as essentially beneath the Constitution’s notice.” Four years later, the court flipped the presumption, imposing a test that governments must meet in order to justify regulation of commercial speech.

Courts sometimes shape society; more often, they respond to other, stronger cultural forces. The Supreme Court’s commercial speech decisions began to reflect the hegemony of commercial advertising interests over every aspect of American culture.

Over the past 50 years or so, the culture and the techniques of commercial speech — of segmenting markets to generate intensity, of exaggerating claims to the margin of untruth, of relentless promotion — have infested every aspect of our culture, including news reporting and political campaigning; they have made our culture all about money, and cheapened it in the process.  

At the same time, issues that once were considered mundane — taste in food, in clothes, in music or movies — have become inextricably intertwined with our politics. To an absurd degree, the act of choosing a car to buy, or a meal to order, or a style of dress — even, according to a recent Washington Post survey, a person to date — has become a political statement.

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Not surprisingly in these circumstances, the court has continued its extension of First Amendment protection to commercial speech; Chief Justice Roberts, in particular, is noted as having “presided over — and participated in — a deliberate and systematic expansion of free speech rights in the realm of campaign finance and commercial speech. The Court’s determination that campaign spending limits on corporations violated free speech … was just one in a series that struck down a range of campaign finance laws … and expanded corporations’ right to speech in other venues, like drug advertising and trademark regulation.” 

The adoption, by the political class, of the culture and techniques of commercial advertising has caused the distinction between political and commercial speech — between a reality show hosted by a hawker of “gadgets and brushes” extraordinaire (everything from Trump Ice bottled water to Success: A Trump Fragrance) and a political rally hosted by the same man as President of the United States — to vanish. It has turned out to be a short road from vodka and steaks to tariffs and tax cuts.    

Seen in light of these larger cultural forces, the Supreme Court’s expansion of First Amendment protection to commercial speech is an understandable, if disappointing, recognition that the legal distinction between commercial and political speech has become impossible to draw. From its starting point — treating commercial speech as inherently misleading and potentially harmful, and thus subject to regulation — the court has faced the cultural equivalent of a magnetic pole inversion; as commercial speech came to resemble political speech and vice versa, the choice became affording First Amendment protection to commercial speech or allowing a greater degree of regulation of political speech. The court has chosen the former.   

With a different approach — accepting that expending money is a form of speech, but insisting that it is a unique and potentially regressive form that is appropriate to regulate — the court could have created a bulwark, arresting the convergence of popular culture with populist politics. Perhaps it will revisit the issue when the vulgarities it has unleashed overwhelm the justices’ sensibilities. 

For the time being, however, President TrumpDonald John TrumpWatergate prosecutor says that Sondland testimony was 'tipping point' for Trump In private moment with Trump, Justice Kennedy pushed for Kavanaugh Supreme Court nomination: book Obama: 'Everybody needs to chill out' about differences between 2020 candidates MORE is the man for our season, if not for all seasons, and our world clicks to the way his mind ticks: leaping, within seconds, from promoting Jeanne Piro’s new book, to lauding the results of the G-7 summit, to touting his poll numbers, to extolling his Doral resort, to insisting that his crowds are larger than those appearing at Sen. Elizabeth WarrenElizabeth Ann WarrenKamala Harris receives new Iowa endorsements after debate performance Warren speech in Georgia interrupted by pro-charter school protesters Hillicon Valley: Senators ask Trump to halt Huawei licenses | Warren criticizes Zuckerberg over secret dinner with Trump | Senior DHS cyber official to leave | Dems offer bill on Libra oversight MORE’s (D-Mass.) rallies, to assailing the “fake news” and the fact that Fox News “isn’t working for us anymore.” 

This is what Trump understands better than anyone: Each of these statements provokes a social media influencer buzz, a cable news panel buzz, a widespread op-ed buzz. Each of these reactions itself is an effort to attract attention, and thus to drive ratings or clicks or some other skewed metrics, and thus to drive revenues from — guess what? — advertising. Money as speech provoking speech that turns into money.

This is the culmination of over 50 years of cultural history: We are saturated in the commercial speech that President Trump exemplifies and embodies, that our highest court has, however grudgingly, decided to protect. 

John Farmer Jr. is director of the Eagleton Institute of Politics at Rutgers University. He is a former assistant U.S. attorney, counsel to the governor of New Jersey, New Jersey attorney general, senior counsel to the 9/11 Commission, dean of Rutgers Law School, and executive vice president and general counsel of Rutgers University.