In Lorillard Tobacco Company v. Reilly, the Supreme Court struck down a Massachusetts ban on tobacco advertising on First Amendment grounds. In his concurring opinion, Clarence Thomas writes:

The State misunderstand the purpose of advertising. Promoting a product that is not yet pervasively used (or a cause that is not yet widely supported) is a primary purpose of advertising. Tobacco advertisements would be no more misleading for suggesting pervasive use of tobacco products than are any other advertisements that attempt to expand a market for a product, or to rally support for a political movement. Any inference from the advertisements that business would like for tobacco use to be pervasive is entirely reasonable, and advertising that gives rise to that inference is in no way deceptive. [Emphasis added.]

There’s so much—from the history of political thought, conservative thought, and free-market libertarianism—packed into these three sentences, one might be forgiven for missing the breadth and power of what Thomas is arguing.

First, notice the explicit comparison, the affinity, that Thomas draws between commercial advertising for a commodity or product and political advocacy and action for a cause.

Part of this comparison has to do with the ongoing effort by constitutional conservatives to draw ever wider First-Amendment boundaries around commercial speech: the more commercial speech can be elevated to the status of political speech, the stronger First Amendment protection it will have. In 44 Liquormart v. Rhode Island, Thomas had written:

I do not see a philosophical or historical basis for asserting that “commercial” speech is of “lower value” than “noncommercial” speech.

In Lorrilard, Thomas pursues that argument, insisting that commercial speech is of equal status with noncommercial speech and thus entitled to similar levels of First Amendment protection.

But there is something else going on with those clauses I’ve bolded above: “a cause that is not yet widely supported…or to rally support for a political movement.”

Thomas is here claiming that advertising is similar to political advocacy and action. Like the political activist or organizer who seeks to turn an unpopular, minority cause into a mass movement, the advertiser seeks to turn a niche product into a mass commodity.

In his Constitution of Liberty, Hayek makes a similar argument, claiming that throughout history, it has been the great men of money and property who have subsidized not only the development of mass commodities—turning previously expensive luxuries, which had been confined to the wealthy elite, into mass products and mass tastes—but also the cultivation of heterodox beliefs and minority persuasions.

Hayek identifies this process in the economic realm—

The important point is not merely that we gradually learn to make cheaply on a large scale what we already know how to make expensively in small quantities but that only from an advanced position does the next range of desires and possibilities become visible, so that the selection of new goals and the effort toward their achievement will begin long before the majority can strive for them. If what they will want after their present goals are realized is soon to be made available, it is necessary that the developments that will bear fruit for the masses in twenty or fifty years’ time should be guided by the views of people who are already in the position of enjoying them.

—as well as in the noncommercial realm of culture, ideas, morals and politics, where significant investments of money are required to support causes and beliefs that otherwise would have little material support:

The importance of the private owner of substantial property, however, does not rest simply on the fact that his existence is an essential condition for the preservation of the structure of competitive enterprise. The man of independent means is an even more important figure in a free society when he is not occupied with using his capital in the pursuit of material gain but uses it in the service of aims which bring no material return. … What little leadership can be expected from the majority is shown by their inadequate support of the arts wherever they have replaced the wealthy patron. And this is even more true of those philanthropic or idealistic movements by which the moral values of the majority are changed. … It is only natural that the development of the art of living and of the non-materialistic values should have profited most from the activities of those who had no material worries.

When I first proposed this line of argument about Hayek, it generated a considerable controversy. What perhaps got lost in that controversy was the notion that for theorists like Hayek, economic action can be understood as a transposition of—or at least bears a correspondence to—political action. This, I’ve argued more generally, is part of a larger move in modern thought, whereby the economy becomes the sublimated field of classic or heroic political action.

It’s interesting to see Clarence Thomas, who claims to have read Hayek (one of his biographers corroborates that claim, only he references Road to Serfdom rather than Constitution of Liberty), channeling a similar notion: that commercial action—in this case, advertising—should be understood in relationship to, or as a variant of, political action.

It puts his First Amendment commercial speech jurisprudence in a different light from how it is conventionally understood: not simply as an attempt to carve out more areas of the market for immunity from government control, but also as an effort to recreate, in the realm of the economy, a sphere for a particular kind of political action.

But there’s an additional element in Thomas’s argument here that bears noting.

The advertiser, for Thomas, is like the political actor insofar as she must use the instruments of persuasion and illusion to achieve her ends. What inspired Thomas’s claim, quoted above, was the State of Massachusetts’s argument that, according to Thomas, “the simple existence of tobacco advertisements misleads people into believing that tobacco use is more pervasive than it actually is.” It was this claim by Massachusetts—that advertising generates an illusory sense of tobacco’s popularity and widespread use—that led Thomas to make his comparison between advertising and political action.

Though Thomas does not explicitly spell this out, the comparison might go like this: Every organizer, activist, or political leader knows that she launches her political cause from a starting point of weakness. The very reason she must turn her issue into a cause is that not enough people support it and she needs that support if she is going to see that causes’s triumph. She has to generate that support. Part of the way she will generate that support is by claiming that in one way or another it’s already there: the masses are silently supportive of her position but are too afraid to act on its behalf; they will be supportive, once they see other people rallying around it. Inevitably, the political organizer or activist will try to nudge that support along, by telling their potential followers that all of their comrades are already out in the commons; they must merely join them to see.

When the First Amendment protects political speech—including, importantly, political speech that is false—it is precisely, Thomas seems to be suggesting, this dimension of speech that lies at the boundaries between fact and fiction that it is protecting.

At the heart of this kind of political action, then, is a straddling of that elusive space between what is, what is not, and what might be. Machiavelli understood that; Hobbes understood that (Leviathan’s massive power is generated in part, as I’ve argued, by healthy and alternating doses of illusion and reality); Nietzsche did, too.

In the modern era, however, no theorist explored that dimension of political action—in both its toxic and tamer variants—more than Hannah Arendt. The toxic variant was to be found in all manner of totalitarianism, as well as in the lies of Richard Nixon and Lyndon Johnson. The tamer variants, however, were found in that dimension of action that involved elements of novelty and initiation, in an appreciation that politics is not the realm of Platonic Truth, a deep structure of what is, beneath the surface or behind the scenes, but of multiple and dissonant perspectives on stage, which provide an occasion for persuasive speech and artfulness.

Though Arendt was not nearly as hostile to factual truth as some would have her be, she did offer, between the lines of some of her essays, an appreciation of the art of the liar, for she saw that art as related, in some ways, to the political arts more generally.

The liar is an actor, in the literal sense, and politics, as Arendt reminds us, is a theater of appearances.

But the liar is also an actor in the political sense: she seeks to change the world, turning what is into what isn’t and what isn’t into what is (this is the part that made Arendt so nervous, as it reminded her of the totalitarian ruler). By arraying herself against the world as it is given to us, the liar claims for herself the same freedom that the political actor claims when she brings something new into the world: the freedom to say no to the world as it is, the freedom to make the world into something other than it is.

It’s no accident that the most famous liar in literature is also an adviser to a man of power, for the adviser or counselor has often been thought of as the quintessential political actor. When Iago says to Roderigo, “I am not what I am,” he is affirming that the liar, the dramatic actor, and the political actor all subscribe to elements of the same creed.

The advertiser operates in a similar realm between truth and illusion. She, too, seeks to use the arts of illusion to create new realities. Thomas seems to be emphasizing that dimension of the advertiser’s art.

Whether and how he thinks it relates to these other political arts—Is it meant to be a substitution for those political arts, such that the First Amendment, in protecting commercial speech, finds or identifies a new realm of political action in the sphere of the economy?—remains to be seen.