Posted on 04/23/2012 4:01:21 AM PDT by Robert Drobot
In 1974 the FCC adopted guidelines stating that although subliminal advertising might not be effective, they still felt it was a deceptive practice. If any broadcaster of TV or Radio signals uses a subliminal message they are subject to fines from the FCC.
On Sunday, 1 April 2012, during the Fox News program John “Stossel” - Stupid in America an advertisment was played for a medicine manufactured by Pfizer called CHANTIX ( varenicline ) tablets. At the beginning of the ad a female provides a positive testimonial about the anti-smoking product followed by the narrator's voice his first two words are “....Obama support....”. He then proceeds to describe the medicine’s positive and negative potentials.
I did a double take, and played the ad again ( Direct TV ), and sure enough the guy says "....Obama support....", whereupon I recorded the program at 12:37p PST.
I believe you but it just isn’t loud enough for me to hear it.
Further, the clip itself misleads a viewer into believing subliminal messaging is legal. It is illegal according to Federal Communications Commission regulations established in 1974.
The clip wrongly references the Federal TRADE Commission.
The clip creator should have known there are two ( 2 ) federal agencies responsible for directly overseeing the electronic medium ( television ) and election campaign finance auditing ( elections ).
The appropriate and negligent agencies failing to protect American Citizen voters are :
The questions demanding answers from AND action by the Federal Communications Commission include :
The questions demanding answers AND action from the Federal Election Commission :
How do I copy the audio to a file which may then post here ?
Got any ideas about how this can get radio talk time ?
In Public Utils. Comm'n v. Pollack, 343 U.S. 451, 72 S. Ct. 813 (1952), the argument was made that the First Amendment guarantees an individual the freedom to listen only to such points of view as he wishes to hear. However, because there was no substantial evidence that radio programs had been used for objectional propaganda, the Supreme Court declined to consider that argument.
Although the Supreme Court in Pollack did not decide whether an individual has a First Amendment right to listen only to points of view which he wishes to hear, the holdings of other Supreme Court cases support the conclusion that such a constitutional right does exist under appropriate circumstances.
In defining the broad spectrum of free speech rights guaranteed by the First Amendment, the Supreme Court has established that an individual has the right to speak, the right to remain silent, and the right to receive information.
The obvious right guaranteed by the express language of the First Amendment is an individual's right to free speech. (Cf. Griswold v. Connecticut, 381 U.S. 479, 482, 85 S. Ct. 1678, 1680 (1965)).
Concomitant with the right to speak is the right not to speak. In Board of Educ. v. Barnette, 319 U.S. 624, 63 S. Ct. 1178 (1943), a local school board adopted regulations requiring school children to recite the Pledge of Allegiance. A child's failure to participate was punishable as insubordination. Members of the Jehovah's Witnesses brought suit to enjoin enforcement of the regulations. The district court granted the injunction and the school board appealed.
The Supreme Court affirmed the district court holding that it was unconstitutional for the school board to compel children to recite the Pledge Of Allegiance. The majority reasoned that it would be inconsistent if the First Amendment protected an individual's right to speak his own mind, but did not protect him from others who would compel him to speak what was not in his mind. (63 S. Ct. at 1183).
The Supreme Court further reasoned that it was more important to protect individual freedom of mind than to sanction compelled uniformity. (63 S. Ct. at 1135).
Finally, the Court concluded that compelling children to recite the Pledge of Allegiance invaded "the sphere of intellect and spirit" protected by the First Amendment. (63 S. Ct. at 1187).
The holding in Barnette was reaffirmed in Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428 (1977). In Wooley, a New Hampshire statute required noncommercial vehicles to bear license plates embossed with the state motto, "Live Free or Die." Any person who knowingly obscured the numbers or letters on a license plate was guilty of a misdemeanor.
Members of the Jehovah's Witnesses brought suit in federal court seeking both declaratory and injunctive relief from enforcement of the statute. They claimed that the state motto conflicted with their religious beliefs. A three-judge district court granted the requested injunction and the state appealed.
On appeal, the Supreme Court held that it was a violation of the First Amendment for the state to require an individual to display an ideological message on his private property.
In reaching its holding, the Court reasoned that the right of freedom of thought protected by the First Amendment included both the right to speak and the right to refrain from speaking. (97 S Ct. at 1405). As the Court stated:
"A system which secures the right to proselytize religious, political and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of `individual freedom of mind.'" (97 S. Ct. at 1435).
Consistent with its holdings that an individual has First Amendment rights to speak and to remain silent, the Supreme Court has also held that an individual has a First Amendment right to receive information.
This right first appears to have been recognized by the Supreme Court in Martin v. City of Struthers, 319 U.S. 141, 63 S. Ct. 862 (1943). In Martin, a city ordinance prohibited individuals from distributing handbills, circulars, or advertisements by summoning a resident to the door. In holding the ordinance unconstitutional, the Supreme Court stated that the First Amendment protects not only the right to distribute literature, but also the right to receive it. 63 S. Ct. at 863.
The First Amentment right to receive information has been reaffirmed several times. (See Griswold v. Connecticut, 381 U.S. 479, 482, 85 S. Ct. 1678, 1680 (1965); Stanley v. Georgia, 394 U.S. 557, 564, 89 S. Ct. 1243, 1247 (1969); Kleindienst v. Mandel, 408 U.S. 753, 762, 92 S. Ct. 2576, 2581 (1972)).
In another case, a statute providing that any pharmacist who advertised or promoted the prices or prescription drugs was guilty of unprofessional conduct was challenged. One of the issues to be resolved by the Supreme Court was whether the plaintiffs, prescription drug consumers, had standing to bring suit as the recipients of the intended advertising. The Court held that they did have standing because the First Amendment protected not only the right to distribute information and ideas but also the right to receive information. The Court stated:
"Freedom of speech presupposes a willing speaker. But where a speaker exists, as in the case here, the protection afforded is to the communication, to its source and to its recipient both. . . This Court has referred to a First Amendment right to `receive information and ideas' and that freedom of speech `necessarily protects the right to receive'. . . If there is a right to advertise, there is a reciprocal right to receive the advertising and it may be asserted by these appellees." (96 S. Ct. at 1823).
Although the Supreme Court has never had occasion to articulate whether an individual has a First Amendment right to be free from unwanted speech, the rationale from the preceding cases which recognize the First Amendment rights to speak, to remain silent, and to receive information as well as dieta from several relevant cases support the conclusion that an individual does have the reciprocal right to be free from unwanted speech. (Emphasis added).
In Kovacs v. Cooper, 336 U.S. 77, 69 S. Ct. 448 (1949), the Supreme Court upheld the validity of a municipal ordinance which prohibited the use of sound trucks despite arguments that it abridged an individual's right of free speech. In reaching its holding, the Supreme Court reasoned that "the right of free speech is guaranteed every citizen that he may reach the minds of willing listeners." (69 S. Ct. at 454). (Emphasis added).
The concurring opinion of Justice Douglas in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S. Ct. 2714 (1974), is supportive of the language in Kovacs.
In Lehman, a candidate for public office attempted to place political advertisements supporting his candidacy on the city transit system. The city refused and the candidate brought suit claiming his First Amendment rights were being violated. The Supreme Court held that due to, inter alia, the captive nature of the streetcar audience, a city bus is not a First Amendment forum (Emphasis added).
In his concurring opinion, Justice Douglas focused on the rights of the passengers by stating that the constitutional rights of the speaker are subordinate to the constitutional rights of the commuters when the circumstances are such that they are incapable of declining to receive the message. (94 S. Ct. at 2719). (Emphasis added).
Kovacs and Lehman imply that individuals have a First Amendment right to be free from unwanted speech. (Emphasis added). The Supreme Court has stated that the right to speak and the right to refrain from speaking are complementary components of the First Amendment rights of freedom of thought and mind. (See Barnette and Wooley, supra).
Speech is only the outward expression of what a person thinks in his mind. Just as an individual has the freedom to express his thoughts in words about political, social and religious issues, he also has the reciprocal freedom to remain silent on these issues. He may not be forced against his will to speak out about them.
Correspondingly, if an individual has the right to receive information and ideas expressed by others with whom he may philosophically, socially, religiously, or politically agree or disagree, he must also have the reciprocal right to refuse to receive such information and ideas. (Emphasis added).
If an individual cannot be made to recite a pledge which conflicts with his religious beliefs because the First Amendment protects his freedom of thought, doesn't that same freedom of thought give him the choice to be free from obtrusive speech which may conflict with his religious beliefs?
Subliminal speech is intended to influence the listener's behavior by having the message surface in the listener's conscious mind as his own thoughts and beliefs.
When an individual is exposed to subliminal messages without his knowledge and consent, he is deprived of his constitutional right to choose the speech to which he would either listen or decline to listen and his First Amendment right of freedom of thought is violated. (Emphasis added).
The Court concludes that the First Amendment right of an individual to be free from intrusive speech are paramount under circumstances involving subliminal messages where the individual has no knowledge that he is being bombarded by these messages, and therefore, has no means of making a conscious decision to either hear them or avoid them.(Emphasis added).
C. May Hidden Messages Be Forced Upon An Unknowing And Unconsenting Audience?
An individual's right of privacy was first articulated by Justice Douglas in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965). According to Griswold, the right of privacy is found in the penumbras emanating from the Bill of Rights. (85 S. Ct. at 1681).
The holding in Griswold was at least partially foreshadowed by Justice Frankfurter's concurrence in Kovacs and Justice Douglas' dissent in Pollack.
In upholding a municipality's ban of sound trucks which emitted loud and raucous noise, Justice Frankfurter relied heavily on the rights of individual's to be free from intrusive speech. He recognized that unless the "narrowing opportunities for serenity and reflection" are safeguarded, "freedom of thought becomes a mocking phrase, and without freedom of thought there can be no free society." (69 S. Ct. at 459). (Emphasis added).
In Pollak, the Supreme Court held that the broadcasting of music over loudspeakers in city buses was constitutionally permissible. Justice Douglas dissented relying upon the passengers' right of privacy. He believed that the right to be let alone was the beginning of all freedom. He stated that the right to be let alone included the right to think as one chooses and to believe as one wishes. (72 S. Ct. at 823).
While Justice Douglas recognized that an individual loses some measure of privacy when he goes upon the streets or enters public places, he did not believe that an individual riding in a public bus out of necessity could be forced to listen to speech which he did not want to hear.
He was concerned that when people are forced to listen to another's ideas, the propagandist is given a powerful weapon. He concluded, stating that "the right of privacy today violated, is a powerful deterrent to any one who would control men's minds." (72 S. Ct. at 824). (Emphasis added).
On occasion, an individual's right of privacy conflicts with another individual's right of free speech. Which right prevails involves a balancing test which often depends upon the circumstances under which the conflict occurs. (See FCC v. Pacifica Found., 433 U.S. 726, 748 n. 27, 93 S. Ct.3026, 3040 n. 9 (1978); Rowan v. Post Office Dep't, 397 U.S. 728, 736-37, 90 S. Ct. 1484, 1490 (1970); Erzonznik v. Jacksonville, 422 U.S. 205, 208-09, 95 S. Ct. 2268, 2272 (1975)).
As the following cases illustrate, an individual's right of privacy will prevail over another's right of free speech if the unwilling listener's degree of captivity makes it impractical for him to avoid the unwanted speech.
In Rowan v. Post Office Dep't, 397 S.S. 228, 90 S. Ct. 1484 (1970), it was necessary for the Supreme Court to determine whether an individual's right of privacy in his home outweighed an individual's free speech rights.
In Rowan, a federal statute allowed an addressee receiving material which he considered erotically arousing or sexually provocative to notify the post office to remove his name from the sender's mailing list. After the post office received the request, it would issue an order directing the sender to refrain from further mailings to the named addressee.
The statute was challenged by publishers, distributors, owner, and operators of mail order houses, and mailing list brokers, and owners and operators of mail service organizations as an unconstitutional infringement upon their First Amendment right to communicate.
The Supreme Court upheld the constitutionality of the statute stating:
"Weighing the highly important right to communicate . . . against the very basic right to be free from sights, sounds, and tangible matters we do not want, it seems to us that a mailer's right to communicate must stop at the mailbox of an unreceptive addressee." (90 S. Ct. at 1490). (Emphasis added).
In reaching its decision, the Court reasoned that nothing in the Constitution compels an individual to listen to or view any unwanted communication, regardless of its merit. 909 s. Ct. at 1490. The Supreme court further stated that if its decision operated to impede the flow of valid ideas, the answer was that no one has a right to force even "good" ideas on an unwilling recipient. (90 S. Ct. at 1491). (Emphasis added).
In Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S. Ct. 2714 (1974), a local politician attempted to place political advertisements in the car card space on city buses. His application was denied because the management agreement with the city did not permit political advertising. The politician sought judicial relief claiming that his First Amendment rights had been violated.
On review, the Supreme Court held that due to, inter alia, the inability of the passengers to effectively avoid the car cards, the politician had no First Amendment right to require his political advertising to be placed in the city buses. (Emphasis added).
Justice Douglas' concurrence emphasized the passengers' right of privacy when he stated:
"In asking us to force the system to accept his message as a vindication of his constitutional rights, the petitioner overlooks the constitutional rights of the commuters. While petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon an audience incapable of declining to receive it. In my view the right of the commuters to be free from forced intrusions on their privacy precludes the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience." (94 S. Ct. at 2719). (Emphasis added).
In FCC v. Pacifica Found., 438 U.S. 726, 98 S. Ct. 3026 (1978), the Supreme Court upheld the authority of the FCC to regulate the hours during which radio stations could broadcast indecent language despite claims that such regulation violated the First Amendment's guarantee of free speech. (Emphasis added).
The Court stated that of all forms of communication, broadcasting received the most limited First Amendment protection because of its "uniquely pervasive presence" in the lives of Americans. (98 S. Ct. at 3040). According to the Court, patently offensive, indecent material presented over the airwaves could be restricted since an individual's right to be left alone at home plainly outweighed the First Amendment rights of an intruder. Id. The Court rejected the argument that the offended listener could simply turn off the radio stating that it was like saying that the remedy for an assault is to run away after the first blow. Id. (Emphasis added).
One of the more recent cases to consider the competing privacy rights of an individual and the First Amendment rights of a speaker is Frisby v. Schultz (108 S. Ct. 2495 (1988)).
In Frisby, a city ordinance was enacted which prohibited residential picketing. The stated purpose of the ordinance was to protect, inter alia, the privacy of the individual's home.
Despite arguments to the contrary, the Supreme Court affirmed that a public street is a traditional public forum regardless of whether or not the street runs through a residential neighborhood.
The test applied by the Court in determining whether or not the ordinance was constitutional was whether it was narrowly tailored to serve a significant government interest and whether it left open ample alternative channels of communication. (108 S. Ct. at 2501).
The Court concluded that protecting the privacy of the home was a significant government interest.
The area of privacy focused on by the Court was protection of the unwilling listener. In this regard, the Court stated:
"Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their homes and that the government may protect this freedom (citations omitted). . . There simply is no right to force speech into the home of an unwilling listener." (108 S. Ct. at 2502). (Emphasis added).
The Court held that the ordinance did not violate the First Amendment. In reaching this holding, the Court reasoned that individuals were captive in their homes and "the First Amendment permits the government to prohibit offensive speech as intrusive when the `captive' audience cannot avoid the objectionable speech." (108 S. Ct. at 2503). (Emphasis added).
Contrasted with the Court`s decisions in the cases discussed above are Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780 (1971), and Erznoznik v. Jacksonville, 422 U.S. 205, 95 S. Ct. 2268 (1975).
In Cohen, the defendant wore a jacket in the Los Angeles County Courthouse with the words "F the Draft" printed on the back. He was arrested and convicted of "maliciously and willfully disturbing the peace or quiet of any neighborhood or person . . . by offensive conduct." (403 U.S. at 16).
The Supreme Court overturned his conviction stating that his message was protected by the First Amendment despite the argument being made that his mode of expression was thrust upon unwilling or unsuspecting viewers, and therefore, was unprotected speech. The Court rejected this argument stating that the unwilling or unsuspecting viewers could easily avert their eyes.
In Erznoznik, the manager of a drive-in theater challenged the constitutionality of a city ordinance which prohibited drive-in theaters, visible from any public street or public place, from showing movies which contained certain prescribed nudity.
In support of the ordinance, the city argued that any movie containing nudity which was visible from a public place could be lawfully suppressed as a nuisance in order to protect citizens from unwilling exposure to material that could be offensive.
The Supreme Court struck down the ordinance as being an unconstitutional impairment of First Amendment rights. In reaching its holding, the Court stated that there are occasions when the degree of captivity makes it impossible for the unwilling viewer or auditor to avoid exposure, and therefore, the captive individual's right of privacy prevails. (95 S. Ct. at 2272 73). However, under the circumstances in Erznoznik, the Court did not believe that a drive-in theater was so obtrusive that it was impossible for an unwilling individual to avoid being exposed to the offensive material. (95 S. Ct. at 2274).
The Court concludes that the foregoing cases firmly establish that the privacy rights of an unwilling listener will prevail over the free speech rights of a speaker if the listener is subjected to a speaker's message under circumstances which make it impossible or impractical for the listener to avoid being exposed to the unwanted message. Conversely, if the listener or viewer can avoid exposure after the initial impact, then the First Amendment rights of the speaker should prevail. (Emphasis added).
Applying this standard to the present case, the Court concludes that the very nature of subliminal messages make it impossible for the unknowing listener to avoid exposure.
Privacy, if it is to mean anything, must permit a recipient of communication to control what he sees or hears. He must have the freedom to choose what he sees or hears. He must have the freedom to choose what he will listen to, read, or view. His reception of communication must be voluntary. No individual should be as a captive audience. (Emphasis added).
The defendants contended during oral arguments that an employer has a First Amendment right to imbed subliminal messages into the Music system of its factory which direct its employees to vote for a particular political candidate in an attempt to influence their vote. They contend that this is the freedom contemplated by the First Amendment.
We do not agree. The Court believes that this approach is the antithesis of freedom. The privacy rights and freedom of the employees to control what they see or hear, and think as they choose, may well be denied when they are continuously exposed to such a subliminal message.
Perhaps no one is more of a captive audience than one who is exposed to subliminal messages. Because individuals subjected to subliminal messages are an unknowing audience, they have even less control than the unwilling audience. The listeners or viewers don't know if they are willing to receive the subliminal message because they are unaware that it existed. In the captive audience cases described above, individuals could at least attempt to shut out the unwanted speech; however, when subliminal messages are employed, the unaware listener does not even have that option. (Emphasis added).
If the right of privacy is to respect the mental processes of an individual, as it does, it must have the ability to foreclose others from secretly intruding into the subconscious of an unwitting individual in an attempt to manipulate his thought processes and ultimately his behavior. (Emphasis added).
In their closing arguments at the oral hearing, the defendants claimed that there was no difference between manipulating an individual by using subliminal techniques or manipulating an individual by traditional speech. The Court does not agree. Traditional speech is consciously heard by the listener whereas subliminal speech is not intended to be nor is it consciously heard by the unwitting listener. Traditional speech may be consciously evaluated by the listener and either accepted or rejected. Subliminal speech is incapable of being consciously evaluated and is intended to influence the listener's behavior without giving him the opportunity for conscious reflection and consideration before acting. (Emphasis added).
The freedom to exercise one's thoughts is essential to the exercise of other constitutional rights. If an individual is not protected in his thoughts and behavior, the right of privacy becomes meaningless. The use of subliminal messages deprive an individual of these aspects of privacy. Subliminal messages may deny an individual his right to make free choices. Consequently, the Court concludes that when an individual is subjected to subliminal messages without his knowledge and consent, his privacy rights outweigh any free speech rights of the person or entity publishing the subliminal message. Subliminal Literature: Bibliography And Review. (Emphasis added).
Remarks by Eldon Taylor
It would be great if I could put the ad audio on FR.
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