Onslaught: commercial speech and gender inequality.

• Author: Piety, Tamara R.

ABSTRACT

Utilizing Dove's infamous "Onslaught" viral ad, this Article explores the ways commercial speech constructs images of and attitudes toward women that interfere with full equality for women. Advertising and marketing contribute to creating a social reality in which it is taken for granted that women must spend a great deal of time on appearance and that appearance is of critical importance to life success. As is typical for much advertising, it often does this by stimulating anxiety. Such anxiety may contribute to low self-esteem, lowered ambitions and stereotype threat reactions, as well as to biased reactions on the part of others--all of which may serve as obstacles to women achieving greater equality. The barrage of images which portray women as sexual objects or commodities also sends a message in some tension with full equality for women and may similarly lead to harmful self-conceptions on the part of women, as well as leading both men and women to view women as less competent. Harms such as these are often justified on the basis of the right of the speaker to participate in public debate or in the public's right to receive advertising "information." The Dove ad itself however, undermines these arguments by illustrating the problem in locating a "speaker" for commercial speech and raising questions about the nature of the "information" provided by advertising. In this Article Professor Piety argues that these questions should give us pause before accepting arguments to extend full First Amendment protection to corporate speech.

... so do your best to run away, but take a breath and you will pay you cannot hide....

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--Lyrics to "La Breeze," soundtrack for Dove "Onslaught" campaign for real beauty video (1)

[Y]ou have to know that for young girls there's a cumulative effect of seeing so many women everywhere serving so many men's interests--all the time. At some point, the message sinks in: Gals exist for the sole purpose of pleasing guys. --Nathan McCall, What's Going On (2)

A couple of years ago, Dove posted a video called "Onslaught" (3) as a part of a marketing effort it called its "Campaign for Real Beauty." (4) The video appears to make an argument that advertising of beauty products and the representations of women in advertising constitute an "onslaught," which generates in viewers an unhealthy fixation on appearance at the expense of other concerns, and contributes to women's anxiety about these issues--presumably to the detriment of the development of their abilities. It is a visually powerful (5) argument that we should not dismiss or trivialize the effects commercial speech may have on us.

It is also deceptive. Although the video appears to be social commentary, it is really just advertising that is intended to sell its product by convincing the viewer that Dove "cares," that Dove as a company (which it probably is not, but more on that later), is a responsible company, and that women who also care about these issues should buy Dove products to support a responsible company.

The "Onslaught" ad is an excellent illustration of what is so problematic about commercial speech. In particular, it illustrates why extending protection for expression to nonhuman, for-profit entities which, unlike human beings, have no inherent expressive needs, is fundamentally misguided. The Dove video also serves as a useful vehicle for exposing some of the shortcomings of the current commercial speech doctrine, in that while the doctrine permits the government to regulate untruthful commercial speech, it fails to capture much that is commercial, as well as much that is misleading and arguably harmful. The advertising critiqued in the Dove video illustrates some of that harm.

In this Article, which is a part of a series of articles I have written on commercial speech, (6) I use the Dove "Onslaught" video as a starting point for a discussion about how commercial speech contributes to harm to women and why, in a world in which women still do not enjoy equal pay, are grossly unrepresented in politics and business, and continue to face harassment and physical insecurity on the basis of gender, such commercial expression should not receive the full First Amendment protection. Although my suggestion is likely to be fairly controversial because it raises the specter of some sort of "gender police," I want to emphasize that this argument does not compel any particular legislative response. Nor does it end the question of whether the benefits of advertising outweigh the harms. This Article is not meant as conclusive proof that advertising harms women. Rather, I want to suggest there is evidence of harm that must be taken seriously. I do not offer suggestions about how we should address those harms should we find the evidence compelling. But treating advertising to heightened First Amendment protection, as some argue for, (7) would certainly make it more difficult to craft solutions. Until we take a fuller account of the damage that is done by the commercial speech onslaught, we should not disarm ourselves. However, before discussing the Dove ad and its implications for commercial speech and the First Amendment, it seems necessary to make some foundational observations in the sections that follow--first, that women have not arrived at a position of full equality with respect to their position in the public sector--in work, politics, business or the professions; and second, to briefly describe the advertising environment that the Dove video seems to critique.

1. ELUSIVE GENDER EQUALITY

   Despite many legal efforts--through legislation and litigation--real gender equality remains a somewhat elusive goal. Women continue to make less money than men do in the same jobs. (8) They continue to experience disparate burdens with respect to housework and childrearing. (9) Women are overrepresented in lower status jobs within the same professions and job categories with men (10) and are underrepresented in politics and in the upper echelons of management. (11)

   In addition to these facts on the ground, women are treated to a barrage of stories in the media suggesting that women who successfully pursue careers to become part of that minority of women in politics or business will pay a high price in lost opportunities for motherhood or in lost relationships because they have over-emphasized the development of their non-family talents and interests. (12) For example, just a few years ago a Forbes columnist advised male readers: "[W]hatever you do, don't marry a woman with a career." (13) He claimed that women with careers were more likely to be dissatisfied with their marriages, neglect housework, and have affairs than were women who did not have careers. (14)

   And although many gains have been made in the right for equal rights for women, it is distressing to see how much things have stayed the same. For example, there are indications that housework is still "women's work," (15) and that the pursuit of a professional career is still the man' s prerogative. (16)

   So perhaps it is not surprising that the sexist language and imagery we saw in the 2008 election elicited so few protests. When campaigning for president, Hillary Clinton faced hecklers who cried, "Iron my shirt!" (17) Vendors sold Hillary Clinton nutcrackers. (18) And at one rally John McCain was asked how Republicans were going to "beat the bitch." (19) Like most observers, McCain did not seem to be offended. (20) Instead, he laughed. Many in the media contributed to the sexism Clinton faced on the campaign trail by commenting that Clinton reminded them of a scolding mother or, as columnist Mike Barnicle put it, "everyone's first wife." (21) Others seemed to feel that claims of sexism were over-blown (22) or too "old school." (23) It is difficult to imagine that if we had substituted racist taunts for the sexist ones that there would not have been an immediate outcry. (24)

   It may be "old school" but the figures cited above suggest that women continue to experience discrimination and to be judged by different standards than men. In particular, women are subjected to more scrutiny about their appearance. (25) This, too, came up in the campaign. Columnist Michael Kinsley suggested that Hillary Clinton might have had a grooming disadvantage because cultural expectations regarding women's appearances often result in women having to spend more time than men on grooming and dressing. (26) Kinsley estimated that even if it was only a twenty-minute difference over the course of the campaign, that twenty minutes could add up to "an extra two weeks of campaigning or sleep for a male candidate." (27)

2. MARKETING INEQUALITY

   Given the long history of discrimination against women, one might think these phenomena would prompt the recognition that we have a long way to go before declaring ourselves in a post-feminist era or labeling objections to sexism "old school." (28) Yet many observers in the mainstream continue to suggest that the differing positions of men and women in society are attributable to some essential, eradicable "difference" that justifies disparate treatment. For example, in what became a notorious contretemps, Larry Summers, the former President of Harvard College and a current member of the Obama administration, proposed that perhaps women were underrepresented in math and science because they had less aptitude for it or were opting out of the requisite long hours of study or work. (29)

   Summers may have been wrong about the reasons for the disparities between men and women's achievements in the academy, (30) but his impulse to look for some essential difference(s) that would explain the disparity is fairly commonplace. However, there may be an explanation (or at least a partial one), right under our noses for why women continue to experience more difficulties in ascending to the highest levels of achievement in the public sphere, and that...