The Constitutional Right to Have Tasteful Beer Ads


December 02, 1991|By GEORGE F. WILL

WASHINGTON. — Washington-- For connoisseurs of the amusements that American litigiousness produces, it doesn't get any better than this.

For, it seems, centuries Stroh Brewery, maker of Old Milwaukee beer, has run television commercials featuring males out fishing, hiking and generally bonding and, come sundown, drinking that beer and sighing, ''It doesn't get any better than this.'' But in recent ads, just after that line is sighed, the Swedish Bikini Team arrives by raft or parachute or whatever, and not dressed for high tea.

Five female employees at Stroh's St. Paul, Minn., brewery have done something as American as buying a six-pack. They have gotten a lawyer and gone to court, charging that the commercials produce, encourage and condone (three distinctly different things) sexual harassment, discrimination and assault in their workplace. Each employee is seeking monetary damages for numerous verbal and physical offenses detailed for the court.

Let us, as lawyers say, stipulate something: The Stroh's ads (which the company says are supposed to be parodies) are offensive and incompatible with America's evolving sensibilities (although perhaps not the sensibilities of the less-evolved target audience of young male beer drinkers). The question is: Do we want courts scrutinizing commercials for evidence of causal connections with bad behavior already legally proscribed?

Commercial speech enjoys less First Amendment protection than most other speech, but it usually is protected if it is truthful and not misleading. However, the women's lawyer, Lori Peterson, is undeterred by the radicalism of asking government, in effect, to punish commercials that have never been found obscene, indecent, illegal in purpose or harmful to the audience. Her argument is that the harm eventually done to women is caused by the debasement of some men who see the commercials.

One supporter of the suit, law professor Ronald K.L. Collins of Catholic University, says the commercials are part of ''the infrastructure of sexism,'' so they should be treated as legally equivalent to the behavior they allegedly foment. Certainly this suit, asserting causal connections between speech broadcast into living rooms and behavior in workplaces, is potentially the thin end of an enormous wedge.

If successful, it could give rise to a censorship regime from which only one good would flow: If courts undertook to extirpate from advertising anything that anybody consid- ers part of the ''infrastructure of sexism,'' courts would have no time for other mischief.

Ms. Peterson says, ''Just as a kid looks to its parents as to what is appropriate behavior in the home, so does the employee look to the employer as to what behavior is appropriate in the workplace.'' Leave aside the quaint paternalism of Ms. Peterson's view of the American working man (and, for that matter, the American kid). Note the logic of the argument: Even speeches by corporate executives might be considered causes of bad behavior arising from a bad workplace environment.

''Imagine,'' says Ms. Peterson, ''our collective horror at seeing black men drop out of the sky to serve white men beer, tap-dance and shine shoes for them. Why is this scenario seen as horrible but similar caricatures of women (with oversized chests and undersized minds) are still accepted?''

Her argument is that the racist commercial would arise from a legacy of slavery and would result in continued racial disadvantage, and that the Swedish Bikini Team commercials similarly have antecedents and results involving stereotypes associated with injurious social treatment. But she is postulating something that cannot be demonstrated, a direct causal connection between broadcast stimuli (the commercials) and subsequent behavior by particular people.

The point lost in the rush to litigate is this: Sexual abuse of the sort the women allege violates clear, enforceable laws. The attack on the commercials is a gratuitous reach for a ''consciousness-raising'' judicial fiat to impose preferences and tastes by claiming them as rights.

Recently a federal judge in New York said something germane to this contretemps. He made a plaintiff pay $60,000 in legal fees to the defendant, a school board she had sued. She had charged that her son was kept out of an honor society as retaliation for her family's criticism of his school, thereby violating the family's First Amendment rights. The judge said:

''Our federal court system is being brought into ridicule and our Constitution is being debased by persons who proclaim themselves to be its strongest supporters: civil-rights activists and attorneys purportedly working in the public interest. By attempting to elevate mere personal desires into constitutional rights and claiming denial of their civil rights whenever their desires are not realized, these persons are demeaning the essential rights and procedures that protect us all.''

It doesn't get any better than that.

George F. Will is a syndicated columnist.

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