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

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 also 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 “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 government or 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 bypasses 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 subtly change our behavior with stimuli that 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 and/or well-hidden 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 lot 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.

Comments

[Steve Genco]

Thanks so much for this intriguing post. I am CEO of a company, Lucid Systems, that performs "neuromarketing" research. We have a fairly detailed description of both the science and the ethics underlying our approach on our website at http://www.lucidsystems.com. Given the amount of hype that surrounds our field, I believe we have an obligation to be as transparent as possible about what we do, how we do it, and how we do it ethically.

The main comment I want to make is that your post and your upcoming article do an important service for the law -- recognizing and assessing the implications of the new knowledge coming out of neuroscience regarding how the human mind actually works. Any field built upon a volitional model of thought and action (the law, economics, politics, marketing) needs to rethink its foundations in light these new findings.

What neuroscience is revealing is the highly interactive and mutually reinforcing nature of preconscious and conscious (or automatic and volitional) cognitive processes. Prior models saw these processes as being at war with each other. In the rational model, the job of conscious thought is to rein in and override those "thoughtless" and dangerous preconscious impulses that cause us to act in ways that violate our self interest. In the opposing model, which might be called the "robot" model, we are seen as slaves to our subconscious processes, and can be easily manipulated against our (volitional) free will (if the model allows us to have free will at all).

The cases and opinions you cite in the first part of your post are implicitly accepting the robot model. They are considering how and under what circumstances we need to be protected from stimuli that "program" us to do things we would not otherwise do. As you point out, this view is not really congruent with how the brain actually works.

Some neuromarketing practitioners are blatantly exploiting this erroneous model as well, if from a different angle. Rather than identifying a threat, they identify an opportunity: they tell their corporate clients they can identify a "buy button in the brain". In so doing, they are playing on their clients' wishful fantasies. The only "buy button" they are triggering is the one in their clients' brains, and the process is as old as the first sale of a magical talisman. Caveat emptor.

Here is what neuroscience tells us about how human brains really work. We are inundated with about 11 million bits of information every second through all of our sensory organs. Of this input, about 40 bits enter our conscious mind where we are aware of "thinking" about something. It is obvious that a massive amount of processing must be going on to select those 40 bits out of the 11 million candidates for attention. It is this processing -- that by definition we are unaware of, because it precedes awareness -- that accounts for all the preconscious influences on our thoughts, decisions, and behaviors.

The fact is, most advertising works through a kind of subliminal or at best low-attention allocation process. For the most part, we do not deliberately pay attention to ads or other marketing stimui. They are a part of the inundation and clutter that our attentional processes are finely tuned to ignore at the conscious level. Yet, when we walk into a drug store and stand in front of the shampoo section, some brands come to mind and others do not. We have rich and deep conceptual networks in our brains that attach hundreds, probably thousands of brands to different concepts and memories. Imagine yourself sitting on the front porch on a hot summer day, drinking an ice cold beverage. What brand do you have in your hand? That is the power of advertising.

I believe subliminal advertising is a threat only under one condition -- monopoly control of information flow. As long as we have access to a free market of ideas, including ideas about what to buy and consume, our brains will continue to do what they do best: selecting, rating, evaluating, remembering and, literally "changing our minds" based on ongoing experience. It is not a coincidence that "brain washing" occurs only if we are subjected to one unrelenting, isolated idea delivered over and over again.

In the real world of a free market society (where freedom of speech is critical to the maintenance of that market), there are simply too many preconscious stimuli to try to legislate among them. This is literally trying to legislate the way we think, which is ultimately futile.

Well-designed academic experiments, in which stimuli are carefully controlled, show that humans can be easily and predictably influenced by stimuli outside our awareness. This is an indisputable fact. But there is a big difference between being exposed to one carefully administered subliminal prime in an experiment, and the real world in which we are bombarded with thousands of stimuli clamoring for our attention every day. Both for those who welcome the robot effect (naive marketers and their neuromarketing enablers) or those who fear it (the consumer protection warriors), the hoped for/feared effect is just not there.

Lucid recently did a study for a non-profit Washington advocacy group (a summary is available on our website here, http://www.lucidsystems.com/newsroom/69-news-items/94-lucid-hope-and-fear.html) that looked at the effect of hope-oriented and fear-oriented political advertising during the 2008 Presidential campaign. We used subliminal priming as a way to measure preconscious reactions to candidates before and after people watched Obama and McCain ads. What we found was that at the preconscious level hope trumped fear, and negative advertising actually produced a measurable decrease in attention and positive feelings toward the candidate delivering the fear message, even when that candidate was preferred by the person viewing the ads.

Although we were explicitly injecting subliminal elements into our experiment, and the processes we were measuring were largely preconscious, no "robot" effects occurred. Our participants' preconscious processing was not irrational and clearly contributed to an overall decision process that was supportive of democratic values.

[TheAA]

"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."

Doesn't this rationale simply suggest that commercial speech should receive no 1st amendment protection? It doesn't seem to be saying anything specific about subliminal advertising or neuromarketing.

It seems to me that the objections against hidden advertising are really no different than the objections to "normal" free speech historically: that it is dangerous, that it will rile people up, that people are too stupid to find out the truth, that it will corrupt values.

The solution to neuromarketing, like the solution to most other free speech problems, is more free speech. When people know about these campaigns, they will be more on guard against them. If they dislike these campaigns, they will dislike companies who are known to use them. And so on.

[Marc Blitz]

Thanks very much for both of your comments. They both seem to highlight what is perhaps the key question here which is, when does an advertisement or other instance of speech leave an individual with sufficient freedom to question or resist a suggestion or message within in?

At one extreme is the still-fictional possibility represented by the imperius curse, the hypnosis of the Manchurian candidate, or a human robot. At the other is the kind of reaction to commercial speech we exhibit now when -- upon saying a commercial for a computer or other electronic device -- we don't immediately purchase the advertised product, but rather investigate its claims by reading Consumer Reports, or by looking for more neutral reviews in CNet, Wired, or the NY Times technology pages. There's clearly a lot of speech that falls into the latter category. Especially in the age of the Internet, it's relatively easy for a Web surfer to double check claims about a product by seeking out counter speech on Google or other search engines, or looking at user comments about the product on Amazon.com or elsewhere. I think speech that is subject to such questioning and investigation (including commercial speech) should generally receive a very high level of First Amendment protection.

The more difficult question, I think, is: When is our response to a certain stimulus is predictable enough (even outside of laboratory conditions), and when are the effects of that response harmful enough (to our autonomy or some other important interest of ours) that some kind of restriction on that speech might be justified? There are, after all, times that the government may restrict speech even though it is within the realm of possibility for us to question or investigate it: The US Securities and Exchange Commission, for example, can penalize companies for misleading shareholders or potential investors. This isn't to say that all commercial speech should be subject to the same regime. But it does underscore that there are times that the mere possibility of independent audience questioning and investigation does not rule out speech limitation, especially where there is a lot at stake for the audience relying on that information, and where questioning and investigation of it would be extraordinarily burdensome. (Indeed, nit-picky readers of Harry Potter might point out in response to my imperius curse example that even that horrible curse can be resisted with an extraordinary amount of will power).

So my question is -- even neuromarketing can never get all the way to the imperius curse or the human robot example, and some of your remarks above provide hope that it likely won't be able to -- are there still some circumstances where the predictability (and the harm to interests it entails) are nonetheless too close for comfort, and thus require some autonomy-safeguarding or restoring measure (preferably one not involving government intervention) that can increase our capacity to question or resist responses that would otherwise very likely be automatic? Again, I'm not suggesting that all speech with automatic and unconscious effects should fall outside the scope of the First Amendment, since that exception would clearly swallow the rule. The question is rather are any such unconscious effects significant enough in the threat they present to autonomy or other personal interest that they require different treatment under the First Amendment?

In any event, many thanks for your thoughtful questions and comments, and the Web links to additional information. They'll be of great help as I think and write about this.

[Peter B. Reiner]

I appreciate Steve Genco's thoughtful comments, and want to laud Lucid Systems for their clear statement of ethical principles. Moreover, I think that Steve has done a wonderful job of summarizing some of the neuroscience issues that surround neuromarketing, although I would add one caveat - our understanding of the brain mechanisms involved in decision making are clearly much better than they were only a few years ago, but they remain incomplete in many important details. I think it is important that scientists, and even more so commercial entities, retain a sense of humility about our understanding of neural function as we sell our wares to a less sophisticated public.

I'd like to clarify one point that arises from Steve's commentary, which we did not make explicit in our paper. My perspective on stealth marketing does not assume a 'robot brain' model. Indeed, it does not assume that Steve's 'rational brain' model is at work either. Rather, it is agnostic about how the brain works but recognizes that autonomy requires, at a minimum, the opportunity to make an informed decision.

Autonomy does not imply that the decision made by my brain will always be in my best interest - Steve is correct in pointing out that there is a wealth of research which demonstrates otherwise. But if an external agent, friend, foe or otherwise, provides me (or more formally, my brain) with information that influences that decision, I should have an opportunity to weigh it with all of the other factors that my brain uses to arrive at a decision, and then arrive at my own decision, imperfect as it may be. Whatever technique the brain uses to make decisions (different models may be at play in different circumstances), the important element to the neurobiology of autonomy is the ability of the brain to be informed that it is in the process of making a decision. Stealth neuromarketing, where a brain is influenced to make a decision but is both unaware of the influence and unable to be aware of the influence, is abhorrent precisely because it precludes autonomy.

Using sophisticated advances in our understanding of the brain to hone marketing strategies is one real-world outcome of neuroscience research. One may like it or hate it. What is important is having clarity on where the bounds of responsible behavior lie.

[Steve Genco]

I fully concur with Peter's point about the necessity for humility. I have an old fashioned belief that the strategic nature of decision-making makes predicting any decision ultimately unattainable. Once I know your prediction, I can change my decision, and so on thru an infinite regression of reflective plays. Poker players knows this dynamic well. I think human decisions will always hold a capacity to surprise us.

I also agree that the proper evaluative stance should be from the perspective of autonomy and, where necessary, protecting against assaults on autonomy. As in a poker game, people need to be aware of the fact that they live in a world of constant, unrelenting pressure from other "players" to get them to do things that are definitely in the other player's interest (give me your money) and which may or may not be in their own interest (get a product or service or experience that I really need or want). Anyone who has read Robert Cialdini's wonderful book INFLUENCE can appreciate how powerful many forms of persuasive action and messages can be, and how hard it can be to resist them.

Ultimately, I think the assault on autonomy, whether from car salesmen or subliminal advertising, is aided and abetted by an educational system that does not do a good job teaching every child critical thinking, logic, and marketplace skepticism. What neuroscience and behavioral economics show us is that critical thinking is an unnatural act, and has to be learned and practiced. Otherwise we are sending generations of consumers into battle unarmed.

Ironically, the same could be said about some buyers of neuromarketing research (and journalists reporting on neuromarketing claims), who are not critical enough in evaluating the products of those vendors.

Just as an anecdotal note, I want to mention that in three years in business, no Lucid client has ever come to us with a request to create or test a subliminal marketing solution. Rather than rubbing their hands in glee at the opportunities to subvert the autonomy of their consumers, they seem to mostly confused and humbled by their inability to figure out what their consumers really want, and whether their products will be abandoned for some other shiny object that they did not anticipate. Our experience is that the consumer remains very much in charge in the American marketplace.

[Daniel S. Goldberg]

Meant without a trace of stark:

"Our experience is that the consumer remains very much in charge in the American marketplace."

In charge of what?

I think this is too sweeping a generalization; it may be more true in some markets, less true in others. I think it is difficult to look at what the best evidence in terms of the effect on, e.g., pharmaceutical & medical device marketing and conclude that such marketing does not exert enormous effects on both consumers and gatekeepers (i.e., prescribers). Further, while the ethical distinction between stealth and transparent marketing is relevant, I don't think it can bear all the weight being ascribed to it here, as there is substantial evidence that even when the marketing is entirely transparent, it still exerts substantial effects on, e.g., prescribing practices.

While I agree with Steve on the need to enhance critical thinking skills, there is good evidence that professionals are not necessarily less affected by effective marketing -- neuro or otherwise -- than lay persons, and hence that even the best critical thinking skills may be insufficient to preclude the effects one might think ought to be precluded. In other words, the ethics of (neuro)marketing are not exhausted simply by analyzing whether the gatekeeper/consumer's autonomy is preserved.

[Steve Genco]

I did try to be non-sweeping ... I said "anecdotally" and "in my company's experience" and meant those caveats. What consumers are "in charge of", according to my clients, is their choice of products in a crowded marketplace. The marketers and product developers I work with seem to sincerely want to know what their customers really want, so they can make their products match those wants -- I have never had a client ask us to help them change people's wants to match their products. In that sense, the consumer is in charge.

I do think Daniel has made a couple of excellent points that I agree with. First, ALL persuasive messaging is designed to "exert enormous effects on consumers and gatekeepers", and so our concerns about the societal and ethical impacts of those efforts should not be limited to subliminal techniques alone. But the discovery of the role of the preconscious in decision making does raise even more issues, and I applaud Marc for shining a light on those and thinking seriously about their implications for the first amendment.

Second, my co-founder at Lucid is a physician with an active neurology practice, and I have gotten some perspective on marketing in the pharmaceutical industry from that association. I agree that by going direct to patient in their advertising, the pharma companies have changed the game, and the decision making process between patient and doctor. But I think this is a regulation issue, not a marketing ethics issue. Fact is, persuasive messaging aimed at our health is going to be influential because we care, above all else, about our own survival. The question of whether pharmaceuticals that impact those survival outcomes should be marketed like potato chips seems to me a bigger issue. But I believe as long as it is allowed, it will be done, poorly or well, and persuasive attempts will continue, effectively or not.

And Daniel is also right that we are all suckers for good marketing, regardless of how many degrees we have. We are also highly susceptible to erroneous logic, as the behavioral economists from Kahneman and Tversky to Ariely have continued to document. We appear to be WIRED that way, so general education is not what I'm talking about here. Rather, we need to learn and practice logic and statistical reasoning because these are not natural ways of thinking for humans. None of us got the education we needed in understand our own cognitive biases and heuristics, and how they can steer us wrong, and what we have to do to counter them.

[Asim]

Thanks for and intriguing post and your thoughts of neuromarketing and neuroethics generally - the issue is indeed complex. I was wondering whether having some sort of tentative "taxonomy" of markets and consumers might help - for example distinguishing between "wholly passive consumers" (that would be i.e. consumers of coca cola). For such consumers, influence on neuromarketing on their behavior would not represent major issue for law, as consumers are not require to actively participate after the simple fact of consumption. However, "potentially active consumers" or markets for potentially active consumers would be more difficult to regulate, since such issues are usually highly legally protected. For example, political campaigns are clear examples of "consuming" products that on some level do require active engagement (if only voting, but sometimes more); or internet market for religious loyalties, where trading in emotions and images is the prime subject, as one would in any case expect (something that i am laboring around right now).

[Marc Blitz]

Thanks for those intriguing thoughts! Yes. I suspect that, as you suggest, it makes a lot of sense to think the specific sort of consumer behavior that is generally triggered (or that it is the goal of the advertiser to trigger). And the distinction between passive vs. active consumer behavior is one distinction that may be important, perhaps because one could expect the active consumer to be more on guard against manipulation.

As you also suggest, First Amendment law actually provides another reason that it would be more difficult to restrict political advertising - or messages appealing to religious loyalties -- than it would be restrict advertising for Coca Cola, for example -- and that is that while commercial speech (such as advertising a soft drink) received only an intermediate level of protection vs. state regulation, political speech is often described as lying at "the core" of First Amendment protection, and religious speech is also be far more difficult for the government to restrict. Still, if people are disturbed at the use of a particular advertising or marketing technique to shape preferences for consumer products in ways that bypass our awareness, I'm guessing it's quite likely they would be **at least** as disturbed by use of similar products to shape religious or political views in ways that bypass our awareness, since one's religious beliefs and ideological commitments are generally substantially more important to one's sense of self than a preference for a particular product.