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 in a movie screening 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)).