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Neuromarketing, Subliminal Messages, and Freedom of Speech (Blitz)

By Marc Blitz

One of the underlying themes in America?s First Amendment jurisprudence is the idea that speech (and other expression) can be strongly insulated from government regulation ? because it is, at least in the typical case, a whole lot less likely than other activity to have coercive effects.  Physical force might carry us somewhere against our will; confiscation of money or property might likewise markedly change our opportunities in ways beyond our control.  But speech or other expression is seen, at least in First Amendment scholarship, as something that we can opt to ignore or reject if we find it unreasonable or unappealing.  As First Amendment scholar C. Edwin Baker says, while speech is only one of many activities that can promote individual autonomy, speech does so ?in a particular, humanly acceptable manner, that is, nonviolently and noncoercively.? (Human Liberty and Freedom of Speech, p. 47)

If pure speech were otherwise ? if, for example, it were more like the imperius curse that allowed evil wizards in the Harry Potter novels to exercise total control over their victims, or like the display of the Queen of Diamonds card that similarly transformed a brainwashed soldier into an unwitting and robotic agent in ?The Manchurian Candidate? ? then we could not feel as safe leaving such a powerful instrument of coercion in people?s unregulated hands (which are, indeed, not only unregulated, but constitutionally-shielded from regulation).

But the rise of neuromarketing ? and the decades-old worry about subliminal advertising that preceded it ? threaten these judgments about speech?s ?non-coercive? nature.  As Emily Murphy, Judy Illes, and Peter Reiner point out in their recent article on the ethics of neuromarketing, while existing neuromarketing research and techniques have not yet (despite the hype surrounding it) given advertisers a means of stealthily and reliably commandeering consumers? minds, the neuromarketing of the future might allow for something like this.  If so, it would, they observe, ?represent a major incursion on individual autonomy.? (Neuroethics of Neuromarketing, J. Consum. Behav. 7: 292-302 (2008), p. 297).

Against this background, it?s not hard to see why judges and scholars have generally taken the position that First Amendment **should not protect** subliminal advertising and other kinds of subliminal communications.   Where a communication contains messages or stimuli that are designed to be registered by ? and affect -- our brain without our being aware of them, then the logic for First Amendment protection disappears, because messages that are thus hidden from our awareness clearly aren?t meant to inform us or offer an idea for our consideration and examination. (We can?t consider and examine a message we don?t realize is there).  Rather, they?re meant ? like an irresistible physical force or economic pressure ? to push in direction without giving us the opportunity to push back, or to question, or opt out.  Or so the argument goes.  Indeed, one can find hints of such a position in legal scholarship as long ago as 1958, the year after James Vicary triggered a public outcry with his claim that he?d hidden subliminal messages promoting Coca Cola and popcorn and the year after Vance Packard described the technique in his book, The Hidden Persuaders.  A review of Packard?s book in Texas Law Review that year wondered whether use of subliminal advertising in TV election ads might mean that ?Orwell?s 1984 is nearer than its title portends? ? and also how First Amendment law can cope with ?questions raised by Packard regarding recent advances in the science of molding men?s minds.?   (Nick Johnson, Review of Vance Packard?s The Hidden Persuaders, 36 Tex. L. Rev. 708, 713 (1958)).

Other First Amendment scholars have also grappled with the issue of subliminal advertising or expression.  In a 1979 piece on the philosophical foundations of First Amendment law, for example, Thomas Scanlon cited subliminal advertising as an example of speech that undercuts or circumvents individual autonomy rather than enabling it:  ?What is bad about it is not just that it is ?subliminal,? i.e. that we are influenced by it without being aware of the influence . . . [but rather that] if it works, it causes us to act ? to buy popcorn say, or read Dostoevsky ? by making us think we have a good reason for acting, even though we probably have no such reason.?  (Freedom of Expression and Categories of Expression, 40 U. Pitt. L. Rev. 519, 525 (1979)) (A message for buying popcorn is an easier target for regulators in America because, at least at this moment in our jurisprudence, commercial speech receives lower First Amendment protection than does political speech or speech about literature and other artistic endeavors.  But as the Vance case below shows, subliminal message lawsuits can deal with artistic as well as commercial speech).

In 1990, subliminal messages figured prominently in a First Amendment decision.  The case of Vance v. Judas Priest concerned two teenagers who shot themselves, after allegedly hearing the subliminal message ?do it? in a Judas Priest song (1990 WL 130920 (Nev. Dist. Ct.) (1990).  One died, the other survived three years with terrible physical injuries, and the surviving teenager and his family filed a lawsuit against the band.  The court found that, while the teenagers might well have heard something that sounds like ?just do it? when listening to the song, there was no evidence Judas Priest had intentionally put that message there.  But while the court rejected the lawsuit, it then went on to then agree that where subliminal messages **are**intentionally hidden within a song or other expression, they are **outside** the protection offered by the First Amendment?s freedom of speech.  This, said the court, is because subliminal messages do not advance the autonomy, truth-finding, or democratic deliberation that constitute the core functions of First Amendment freedom: On the contrary, said the court, subliminal communications are ?the antithesis of these freedoms.  They do not convey ideas or information to be processes by the listener so that he or she can make an individual determination about its value.? (p. *25).   Moreover, it said, subliminal communications also contravene the individual?s ?right to be free from unwanted speech? and to be free from invasions of privacy. (p. *25-32). 

Another federal court subsequently agreed. Even though it found no evidence that Ozzy Osborne?s ?Suicide Solution? contained the subliminal message alleged by the plaintiffs to have caused their son?s suicide, a US District Court in Georgia made it clear that any such subliminal speech would be ?akin to false and misleading commercial advertising? and ?worthy of little, if any, first amendment constitutional protection.? (Waller v. Osborne, 763 F. Supp. 1144, 1148 (M.D. Ga. 1991)).   Beyond these court cases, there have also been other attempts to restrict it, by wielding both government and private power:  The National Association of Broadcasters declared it impermissible, the Federal Communications Commission has declared it " inconsistent with the obligations" of a station licensed to broadcast film or television, and legislation barring use of subliminal messages has been considered at the state level and in Congress.

These analyses are, I think, right to find that at least some subliminal messages should fall outside the First Amendment?s protection.  But I think the legal questions raised by subliminal stimuli aren?t quite as straightforward as they might initially appear.  I discuss these issues more deeply in a longer article I?m now writing, but I thought I?d say a little bit here (much more briefly and less systematically) about why these questions should be of interest to free speech scholars and to jurists.

First, one complexity is that while the above-proposed restriction on subliminal message might seem unthreatening to the kind of expression we seek in cultural and commercial contexts, it?s not the only kind of expression that?s subject to the kinds objections raised in Vance.  After all, we find ourselves mysteriously (and perhaps irresistibly) steered toward certain thoughts or behaviors not only by cause-and-effect sequences that begin with a hidden stimulus, but also by sequences that originate in things that are apparent to us.  This is precisely the point that Susan Hurley makes in her argument (already mentioned in an earlier post of mine here) that First Amendment values are offended not just by stimuli we are unaware of, but also by behavioral or personality-shaping effects which flow (unnoticed) from stimuli that we **are** aware of.  In short, she argues, freedom of expression is arguably offended (rather than supported) by speech which by-passes our processes of conscious reflection, whether that by-passing occurs as soon as the stimulus is received (as it does in subliminal messages) or happens later when a consciously-perceived stimulus leads to unobserved and irresistible changes in our psyche.

This observation not only makes Hurley?s attack on ?bypass? mechanisms more significant than narrow analyses of subliminal speech.  It also makes it more difficult to address this concern practically, because virtually all speech can potentially trigger mental operations that have unintended (and perhaps hard to resist) results.  Indeed, it is for this reason that some scholars have rejected the Vance court?s argument that speech ceases to be First Amendment expression when it circumvents ?an individual determination about its value.?  As Thomas Scanlon recognizes, subliminal speech is by no means unique in operating below the radar of our processes of rational reflection: it ?happens all the time? that we are influenced by stimuli ?without being aware of that influence? (p. 525) and such unconscious changes can start not only from hidden stimuli but also from ?what is clearly seen and heard.? (p. 548).  (A number of law review pieces written in the wake of the Vance decision makes the same observation in questioning some of the court?s arguments against protecting subliminal speech (See, e.g., Laura W. Brill, The First Amendment and The Power of Suggestion: Protecting Negligent Speakers in Cases of ?Imitative Harm,? 94 Colum. L. Rev. 984, 1002-1004 (1994); Scot Silvergate. Subliminal Perception and the First Amendment: Yelling Fire in a Crowded Mind?, 44 U. Miami L. Rev. 1243, 1246-1247 (1995)).  In fact, Martin Lindstrom reports, in his book, Buy.ology, that companies are already trying to influence with stimuli we can see and hear:  Philip Morris, he reports, tries to get consumers to purchase Marlboro cigarettes not with imperceptible screen shots of the cigarette (which is hard for them to do in the current tobacco ad regulation regime) but rather by ?offer[ing] bars financial incentives to fill their venues with color schemes, specifically designed furniture, ashtrays, suggestive tiles designed in captivating shapes similar to parts of the Marlboro logo, and other subtle symbols that when combined convey the very essence of Marlboro ? without even mention of the brand name or the sight of the actual logo.? (p. 79). (Ellen Goodman provides a proposal that might be adapted to this kind of ?stealth marketing? when she analyzes the First Amendment and other legal implications of hidden marketing in broadcast media and proposes an expanded sponsorship disclosure law that deals with it.  See Stealth Marketing and Editorial Integrity, 85 Tex. L. Rev. 83 (2006)).

Thus, we can?t automatically exclude from the realm of free speech all communications or expression that has unobserved or hard-to-resist effects on our thoughts or behavior.   Rather, we need some additional criteria to determine when speech has crossed the line that separates a well-informed and powerful attempt to change the way we think or behave (which is presumably protected) from speech that is so powerful that it completely overrides our autonomy (or otherwise undercuts a right or interest in some way the First Amendment cannot justify).

One possible starting point is to at least begin by excluding subliminal messages, which are completely beyond our power to control because their influence is hidden **entirely.**  At least when we can consciously perceive a stimulus, one might argue, we have a fighting chance of figuring out ? with good detective work ? that it is at the root of a behavior or mental tendency that was initially mysterious.  Even if we don?t initially link violent thoughts or tendencies to video games or movies we?ve watched, for example, we can at least make such a link when we take a hard look at our own tendencies and try to trace them back to particular episodes in our personal history.  

But I?m not sure this criterion is all that helpful a starting point.  For one thing, for us to have a fighting chance in this regard, we or someone else would not only have to consciously perceive the sight or sound that sets in motion a certain change in us, we?d also have to remember we did so (or have some way of getting such information from someone who did remember it, or an archiving device that recorded it ? perhaps pervasive video surveillance isn?t so bad after all?).  So speech that we are aware might still, as Hurley argues, be worrisome. 

Another concern is not that consciously perceived stimuli might be harmful, but that certain hidden messages or other stealth expressions might be valuable.   The history of art, film and music is replete with examples of cryptic messages that are impossible to ferret out for all but the most determined audiences: from the hidden ?Ninas? in Al Hirschfeld?s drawings, to the Biblical themes and characters arguably woven into the plot of ?Pulp Fiction,? and less arguably, into the story lines of ?Donnie Darko? or ?The Lion, The Witch, and the Wardrobe,? to numerous hidden sounds and lyrics in rock and other music.   One might object that there is a difference between artistic works that invite the reader to hunt for a meaning that underlies what is seen, rather than for something that can?t easily be seen or heard at all.  But as Joseph LeDoux notes in summarizing experiments by social psychologist John Bargh, people might be ?primed? to behave in certain ways ? such as acting more aggressively or politely -- by hidden meanings as well as hidden stimuli: ?In the studies [he summarizes], the priming stimuli were consciously available but their meanings implicit.? (The Emotional Brain, p. 62).

Also, even when we?re focusing only on hidden stimuli, I?m not sure that the latter isn?t fair game in picture or song that playfully masks not merely its meaning, but certain extremely hard-to-notice visual or auditory elements of the piece.  Of course, even such difficult-to-notice elements might be distinguished from the impossible-to-perceive words or images on a screen that is flashed for a mere 1/200^th of a second.  But even this distinction might be eroded with technology that, for example, can isolate and let us rewind and review every frame in a movie or component of a song or recorded statement.

In any event, what this seems to underscore (at least as I think about such examples now) is that what makes subliminal speech or stealth neuromarketing unsettling for us is not that might enter our mind outside of our awareness, or that it might even subtly influence us in ways we can?t easily take control of, but rather that it is doing so to fulfill a certain kind of design that is intended to cause us ? in our own minds ? is a certain kind of harm.  A message that is carefully calculated to make us buy a product we wouldn?t otherwise buy (and to do so without us knowing why) is a deeper violation of our autonomy than a hidden element that powerfully influences the way we perceive a work of art (again without us quite knowing why) and changes our emotional response to that artwork, but doesn?t ?program? us to engage in any behavior benefitting the speaker or an ally of his.

This is especially true where the hidden messages or visual and aural components added by an artist or other speaker have effects that are unpredictable to that speaker.  Although as Thomas Scanlon notes, the harms done to us through unrecognized speech effects might come not only from ?a conscious manipulator? but also from ?inanimate causes,? the accidental nature of the latter seems to make it a far less significant concern.  (p. 527).   By contrast, where we are so programmed by speech to take a particular action, then speech that produces this effect is clearly much more like the coercive imperius curse of Harry Potter or the autonomy-nullifying Queen of Diamonds hypnosis in the Manchurian Candidate, and would clearly not be the kind of act that deserves First Amendment protection, even if the order was not carried out immediately, and even if the chance of its being carried was closer to say 75%, than 100%.   Our autonomy is being impermissibly threatened by action that has a good chance of transforming us from an independent agent into someone else?s tool, even if such a weapon doesn?t work 100% of the time and even if its effects are delayed.

Finally, even if we can?t trace a particular preference, habit of thinking or behavioral tendency back to its starting point (and even if that starting point is to some extent intentionally implanted in us by someone else), it?s certainly less worrisome when we can later substitute our own preferences or habits if we choose to do so, at least so long as the externally-implanted and irresistible preference or tendency doesn?t do us too much harm in the interim.  So, for example, if I was raised, from the age of zero, to be a New York Yankees baseball fan (with Yankees banners hung all around my crib) and left, by my parents, in a special Yankees-fans-of-the-future day care center, I might still choose ? in a later phase of my life ? to switch to rooting for the Mets or Red Sox or to stop following baseball altogether, even if I can?t entirely figure out what made it somewhat difficult to tear myself away from the Yankees (and baseball more generally) when I make that change.

In any event, I think it is important that courts think carefully about these challenges in analyzing cases about subliminal speech or neuromarketing. While its undoubtedly important for them to give the government leeway to protect individual autonomy from what might become a very real threat to it, it?s also important that they don?t chill other speech or art that just happens to resemble the threatening kind.  Art, film, and painting will be a whole less interesting and valuable if those who create it have to think constantly and anxiously about what kinds of hidden brainwashing mechanisms potential plaintiffs might find in song lyrics or detailed imagery. 

I hope to have additional and more systematic thoughts on this in my upcoming article.  I?m not yet ready to post it on SSRN: I?m now making portions of it available only by flashing selected paragraphs in it for 1/200^th of a second in various popular YouTube videos, together with split-second animations of Albert Einstein, Marilyn Monroe, Plato, and Elvis Presley all saying how much they liked the article and how you should too.  On a more serious note, I?d welcome any thoughts, advice, or recommended reading on these questions.

Full post as published by Neuroethics and Law on May 14, 2009 (boomark / email).