Resisting Deep Capture: The Commercial Speech Doctrine and Junk Food Advertising to Children

Abstract

This Article analyzes the childhood obesity epidemic, and junk food advertising to children, from the perspective of "critical realism," an approach to legal theory that seeks to incorporate important insights from social psychology and other social sciences. Exploring the First Amendment implications of a proposed ban on junk food advertising, the Article argues that the central conception of human agency implicit in the Supreme Court's commercial speech jurisprudence rests on intuitively grounded presumptions that are false, and which threaten to leave consumers vulnerable to manipulation through advertising in ways consumers do not anticipate or appreciate. However, the Article explains that a second, more accurate, conception of human agency, which takes into account non-intuitive realities concerning the sources of human behavior, is also evident in the Court's commercial speech jurisprudence. The Article concludes that by developing and exploiting this second conception in the commercial speech cases, a qualified ban on junk food advertising can be seen as normatively justifiable and constitutionally viable.