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The Legal Status of
Subliminal Communication in America

The nature of judicial interpretation regarding subliminal communication is rapidly becoming more of a legal concern than legislation to those employing subliminal stimuli in any form.

As such, this section was added to the original format of the text to include a legal historical perspective. Although the law in regard to subliminal stimuli has been discussed in the past in two of my books, the precise rulings and circumstances leading to the same have not. In fact, as difficult as some of the material is in terms of its access, this discussion would not occur now but for the efforts of Honorable Jerry C. Whitehead. Judge Whitehead essentially compiled the relevant history in response to a motion for dismissal that arose in the Judas Priest case in the Second Judicial District Court of Nevada in and for the county of Washoe. The following is therefore taken in large from Judge Whitehead's remarks.

Definition

The legal definition of subliminal communication is generally taken to be "the projection of messages by light or sound so quickly or faintly that they are received by the listener below the level of conscious awareness." (Cited for reference are "The Subconcious Taken Captive: A social, ethical, and legal analysis of subliminal communication technology", 54 S. Cal. L. Rev. 1077, 1080 (1981) and "Privacy and Freedom" 279 (1970)).


Legal History

In 1957, James Vicary of Subliminal Projection Co., Inc. announced special equipment that would place subliminal messages in the advertising industry. He cited as a success story the now infamous New Jersey Theater that superimposed the messages "drink Coca-Cola" and "hungry? Eat popcorn" on the movie screen during a showing of the movie Picnic. Vicary claimed up to a 58% increase in relevant sales following the presentations. Shortly after Vicary`s announcement, the major networks announced that they would not accept subliminal advertising "or employ the technique on their radio or television productions."

This initial public controversy was generally met with an outcry. In the words of Judge Whitehead, the historical response to the current controversy continued as:

A typical response by the press is found in the following quote from the Saturday Review:

"The subconscious mind is the most delicate part of the most delicate apparatus in the entire universe. It is not to be smudged, sullied, or twisted in order to boost the sales of popcorn or anything else. Nothing is more difficult in the modern world than to protect the privacy of the human soul." (Smudging the Subconcious, Saturday Rev., Oct. 5, 1957).

Judge Whitehead continues:

In refusing to employ such technology, CBS stated:

"The legal, social and ethical implications raised by subliminal perception as we understand it are sufficient to preclude it from use in any form in the CBS Television Network and our Company owned stations. Furthermore, it has been and will continue to be our policy to insist that all advertising messages are clearly identified as such to our viewers." (Bliss, supra, p. 12, at 437 (quoting from 6 NARTS, Television Code Subscriber Bulletin, No. 8 at 1 (Dec. 1975)).


The Television Board of the National Association of Broadcasters (NAB) amended the Television Code to include the following provision:

"The use of the television medium to transmit information of any kind by the use of the process called "subliminal perception," or by the use of any similar technique whereby an attempt is made to convey information to the viewer by transmitting messages below the threshold of normal awareness is not permitted." (Bliss, supra, p. 12, at 435 (quoting from NEWS FROM NAB, Mar. 26, 1958).

Legislation to prohibit the use of subliminal communication was also introduced in Congress; however, no hearings were ever held and the bills died in committee. (Westin, supra, p. 11, at 282-283; Bliss, supra, p. 12, at 426-427).

The reaction against subliminal perception was greater than Vicary expected, prompting him to claim that if subliminal communications were banned by the government, he would go to the Supreme Court to protect his free speech right to use subliminal messages. (Westin, supra, p. 12, at 288).

Following Vicary's press conference, several radio and television stations experimented with subliminal communication with mixed results. (Note, First Amendment dialogue and Subliminal Messages, 11 N.Y.U. Rev. L. & Soc. Change 331, 332 (1983); Westin, supra p.12, at 289-290).

In 1962, CBS received some unwanted publicity when an announcer for "To Tell The Truth" informed the national viewing audience that subliminal messages were inserted in the regular program credits. After receiving numerous complaints from viewers and an arresting complaint from the FCC, CBS stated that the announcement was a hoax. (Note, supra, p. 14, at 332-333).

Much of the controversy surrounding subliminal messages faded until the Christmas of 1973 when several viewers complained to the FTC and the FCC about the presence of the subliminal message "Get It" in a national television commercial for "Husker-Du," a children's game. The Premium Corporation of America voluntarily removed the commercial from the air, claiming that the subliminal message was inserted in the commercial by a misguided employee. (Note, supra, p. 14, at 333; Bliss, supra, p. 12, at 425).

As a result of the complaints received from the "Husker-Du" incident, the FCC issued a public notice wherein the agency stated:

"We believe that use of subliminal perception is inconsistent with the obligations of a licensee, and therefore we take this occasion to make clear that broadcasters employing such techniques are contrary to the public interest. Whether effective or not, such broadcasts clearly are intended to be deceptive.

In closing, we note that the Federal Trade Commission also received a complaint about the pre-Christmas announcements, and that it is making inquiry into the matter in light of the laws that it administers."

(Note, supra, p. 14, at 358 (quoting from FCC PUBLIC NOTICE, Broadcast of Information by Means of "Subliminal Perception Techniques", FCC 74-78, 2 (Jan. 24, 1974), 39 Fed. Reg. 3714 (1974)).

Although subliminal communications appear to be a novelty, the following discussion illustrates that their presence in our society is more pervasive that many would suppose.

In 1971, Inflight Motion Pictures, Inc. announced in The New York Times that it would begin selling subliminal advertisements to be imbedded in the films distributed to the airlines. (Bliss, supra, p. 12, at 424 (citing N.Y. Times, Dec. 8, 1971, at 108 col. 6)).

Warner Brothers has acknowledged that a subliminal death mask was used in the motion picture, "The Exorcist." (In Through the Out Door, Omni Magazine, 45, pp 47-48 (Feb. 1981)).

Subliminal messages are also being used in attempts to control weight, reduce stress, treat compulsive behavior, increase real estate sales, discourage shoplifting, reduce employee turnover, and to quit smoking. (Key, W.B. Subliminal Seduction, 70 A.B.A.J. 25, 26 (July 1984); Note, supra, p. 14, at 333, 334; Note, supra, p. 11, at 1083-84).

Another company has developed and patented audio equipment which mixes subliminal messages in Music. (Note, supra, p. 14, at 334). Approximately fifty department stores have installed this audio equipment to imbed the message, "I am honest; I will not steal," in the music broadcast throughout the store. (Secret Voices, Time, Sept. 10, 1979, at 71; Kiesel, supra at 26).

Recently declassified government documents indicate that the Central Intelligence Agency has considered using subliminal communication to implant suggestions or commands and to influence the results of political elections. Some of these documents indicate that government use of subliminal techniques could be accomplished on a widespread basis without having to disclose their use because of national security reasons. (Note, supra, p. 11, at 1083, 1086 (citing Lee, The CIA's Subliminal Seduction, High Times, 96 (Feb. 1980)).

In 1984, the California Assembly passed a bill requiring that people be notified if they are about to be subjected to subliminal communications in a public place. (Gurnick, Subliminal Advertising: Threat to Consumer Autonomy?, 21 Bev. Hills Bar Journal, 56, p. 70 (1987)). However, the Senate Judiciary Committee never acted upon the bill and it died in the Senate.

The author of the bill claimed that undisclosed use of subliminal messages was an invasion of privacy. While the American Civil Liberties Union was opposed to the use of subliminal communication, it did not support the bill because, in its opinion, it would have created a private cause of action which would have chilled speech. The ACLU stated that any such litigation should be handled by the state attorney general as a fraud against consumers. (Kiesel, supra, p. 16, at 26).

The Bureau of Alcohol, Tobacco and Firearms has adopted regulations prohibiting alcohol advertisements which contain subliminal messages on the basis that they are deceptive advertising. The pertinent regulation states:

(h) Deceptive advertising techniques. Subliminal or similar techniques are prohibited. "Subliminal or similar techniques," as used in this part, refers to any device or technique that is used to convey, or attempts to convey, a message to a person by means of images or sounds of a very brief nature that cannot be perceived at a normal level of awareness. (27 C.F.R. sec, 5.65 (h) (1988)).

The foregoing discussion illustrates that subliminal communication techniques are more common than one would expect. However, the full extent to which subliminal communication is being used today in television, music, movies, videos, and other mediums is not known. This is partly due to the fact that such messages are not intended to be consciously perceived and partly due to the fact that no governmental agency is monitoring their use.

Judge Whitehead continues with a very eloquent examination of First Amendment rights as they pertain to subliminal communication. As such, the author's choose to continue to quote him at length: ARE SUBLIMINAL MESSAGES PROTECTED SPEECH?

The threshold question for the Court to resolve is whether the audio subliminal commands alleged by the plaintiffs to be imbedded in the "Stained Class" album are protected by the First Amendment.

If the audio subliminal commands are protected speech, we must dismiss the plaintiff's action. However, if the Court concludes that they are not protected speech, we must then decide whether, under the factual circumstances of this case, there is a triable issue of fact as to whether the subliminal communications were a legal cause of the December 23, 1985 shootings.

The Court approaches this issue with great respect for the First Amendment and with an appreciation for the basic rights which it necessarily protects. It allows people to speak upon political, social and religious issues. It allows us to criticize and question authority and power. It allows individuals to artistically express themselves without undue fear of censorship. Perhaps no other constitutional right guarantees such expansive freedom as does the First Amendment. It is the key to the retention of all our other freedoms.

Although the First Amendment has a preferred position in the hierarchy of constitutional rights, the Supreme Court has never held the right of free speech to be absolute at all times and under all circumstances. Consequently, it has articulated certain well-defined and narrowly drawn classes of speech which are not protected. Thus, for example, an individual may not seek protection in the First Amendment if he: (1) counsels and encourages another to commit murder; (2) libels another person; (3) commits perjury; or (4) engages in bribery.

In considering whether subliminal communication is protected by speech, the defendants have urged the Court to apply the incitement standard enunciated by the Supreme Court in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827 (1969). As this Court has repeatedly stated, if the only issue before us were whether the lyrics of the song were protected speech, the Court would follow the incitement standard in Brandenburg and hold that the lyrics were protected speech. (See McCollum v. CBS, Inc., 202 Cal. App. 3d 989, 249 Cal. Rptr. 187 (1988)).

However, the Court believes that the constitutional issues raised by the use of subliminal communication are so entirely different than those raised by the use of supraliminal music lyrics that a proper determination of whether subliminal communication is protected speech cannot be accomplished by applying Brandenburg.

The Supreme Court has stated that doctrines of standards developed in one context should not be mechanically applied in another context. The Supreme Court has further stated that "each medium of expression must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems."(Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S. Ct. 1239, 1246 (1975)). This principle was reaffirmed in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S. Ct. 2882 (1981), wherein the plurality decision stated that "each method of communicating ideas is a `law unto itself' and that law must reflect the `differing natures, values, abuses and dangers' of each method." 95 S. Ct. at 2889 (quoting from Justice Jackson's remarks in Kovacs v. Cooper, 336 U.S. 77, 97, 69 S. Ct. 448, 459 (1949); see also FCC v. Pacifica Found., 438 U.S. 726, 748, 98 S. Ct. 3026, 3039 (1978). (Each medium of expression presents special First Amendment problems); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S. Ct. 777, 781 (1952) (Each method of expression tends to create its own peculiar problems)).

Justice Frankfurter's concurring opinion in Kovacs emphasized the danger of mechanically applying judicial formulas. Therein he stated:

"It is argued that the Constitution protects freedom of speech: Freedom of speech means the right to communicate, whatever the physical means for so doing; sound tracks are one form of communication; ergo that form is entitled to the same protection as any other means of communication, whether by tongue or pen. Such sterile argumentation treats society as though it consisted of bloodless categories. The various forms of modern so-called `mass communications' raise issues that were not implied in the means of communication known or contemplated by Franklin and Jefferson and Madison." (69 s.Ct. at 458).

Unfortunately, the Court has no direct precedent to rely upon in deciding whether subliminal communication is protected by the First Amendment. Consequently, we approach the subject matter of this motion much the same as Justice Douglas did in Public Utils. Comm'n v. Pollak, 343 U.S. 451 72 S. Ct. 813 (1952), when he stated "this is a case of first impression. There are no precedents to construe; no principles previously expounded to apply. We write on a clean slate." (72 S. Ct. at 823).

After giving careful consideration to the merits of this case, the Court concludes that the audio subliminal communications allegedly contained in the defendant's music recordings are not entitled to first Amendment protection. The Court bases this conclusion on three grounds. These are: (A) subliminal communication does not advance any of the purposes of free speech; (B) an individual has a First Amendment right to be free from unwanted speech; and (C) the listener's right of privacy outweighs the speaker's right of free speech when subliminal speech is used. The Court turns to discuss each of these.

A. Subliminal Messages Do Not Advance Any Theories Supporting Free Speech.

Although the case law involving freedom of speech is voluminous, the Supreme Court's first major encounters with free speech claims did not occur until shortly after World War I. However, despite its short history in the courts, no other constitutional right appears to have generated as much controversy and emotion as freedom of speech.

Several major theories have been advanced to justify the protection given to free speech. They are: (1) the marketplace of ideas: (2) representative democracy and self-government; and (3) individual self-fulfillment and self-realization.

The marketplace of ideas is perhaps the most widely recognized theory. It was first articulated by Justice Holmes in his dissent in Abrams v. United States, 250 U.S. 616, 40 S. Ct. 17 (1919), wherein he stated:

"The ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution." (40 S. Ct. at 22).

This theory was subsequently approved by the Supreme Court in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S. Ct. 1794, 1806 (1969), wherein Justice White stated that "it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail."

The beginnings of this theory are found in the early writings of John Milton and John Stuart Mill. (Retunda, Nowak & Young, Treatise on Constitutional Law: Substance and Procedure, sec. 20.6 (1986)).

In his tract, Areopagitica, Milton said:

"Though all the winds of doctrine were let loose to play upon the earth, so truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and falsehood grapple; whoever knew truth put to the worse in a free and open encounter." (Id. (quoting J. Milton, Areopacitica, A Speech for the Liberty of Unlicensed Printing, (1644); G. Gunther, Constitutional Law 978 (11th ed. 1985)).

Two centuries later in his 1859 essay, On Liberty, Mill discussed the public benefit which results from the free exchange of ideas. He wrote:

First, if any opinion is compelled to silence, that opinion for aught we can certainly know, be true. To deny this is to assume our own infallibility. Secondly, though this silenced opinion be error, it may and very commonly does, contain a portion of the truth; and since the generally prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth had any chance being supplied. Thirdly, even if the received opinion be not only true but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension of feeling of its rational grounds. And not only this, but fourthly, the meaning of the doctrine itself will be in danger of being enfeebled. (Rotunda, Nowak & Young, supra p. 19, sec. 20.26 (quoting J.S. Mill, On Liberty, (1859).

A second major theory offered to justify why free speech is protected by the First Amendment is that free speech is essential to intelligent self-government in a democratic system. (L. Tribe, American Constitutional Law 786 (2nd ed. 1988); G. Gunther, Constitutional Law, 976 (11th ed. 1985)). Under this approach, the First Amendment would provide absolute protection for public discussion of political issues and would provide only minimal due-process protection for discussion of non-political issues.

The third major theory offered to justify protection of speech is that it promotes individual self-fulfillment and self-realization. (Rotunda, Nowak & Young, supra, p. 19, at 15; Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591, (1982); Gunther, supra p. 20, at 976). Justice Brandeis' concurrence in Whitney v. California, 274 U.S. 357, 47 S. Ct. 641 (1927), has been cited as support for this theory. Therein he states that "those who won our independence believed that the final end of the State was to make men free to develop their faculties. . ." (274 U.S. at 375).

Under this theory, when speech is freely chosen by the speaker to persuade others, it defines and expresses the "self" and enables the individual to develop his powers and abilities and to make decisions regarding his destiny. (Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591 (1982)).

The Court concludes that the use of audio subliminal communications does not advance any of these theories cited to justify free speech. Each of these theories entails some measure of discussion, the free flow of ideas, and open and robust debate among the participants. Under the marketplace theory, the free exchange of ideas ultimately permits truth to prevail; under the self-government theory, discussion and debate over political issues furthers our democratic system of government; and under the self-fulfillment or self-realization theory, an individual's ability to freely express himself to others enhances his personal autonomy and development.

Audio subliminal communications are the antithesis of these theories. They do not convey ideas or information to be processed by the listener so that he or she can make an individual determination about its value. They do not enable an individual to further his personal autonomy. Instead, they are intended to influence and manipulate the behavior of the listener without his knowledge.

Since subliminal communication does not contribute to dialogue, truth, the free market of ideas, democracy or personal autonomy, it is not really "speech." Even in its most basic form, the use of speech presumes that views will be exchanged or that information will be conveyed and understood. However, subliminal messages are not intended to convey information to be consciously understood, they are intended to surreptitiously influence the thought processes of an individual, and ultimately, his behavior.

Audio subliminal communications infringe upon the freedom of thought and mind which the First Amendment seeks to protect. (Cf. Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428 (1977)).

Because subliminal messages are inconsistent with any of the theories offered to justify freedom of speech, the Court concludes that they are not entitled to First Amendment protection.

B. The Individual's First Amendment Right to Be Free From Unwanted Speech.

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.

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.

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).

Kovacs and Lehman imply that individuals have a First Amendment right to be free from unwanted speech. 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.

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.

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.

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).

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).

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).

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).

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.

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).

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.

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.

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).

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).

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.

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.

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.

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.

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.

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.

Remarks by Eldon Taylor - >

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Acknowledgements | Forward | Introduction | The Controversy
Understanding Subliminal | Subconscious Mind Power | History
Theoretical Models of Subliminal Perception | The Legal Status of Subliminal
Communication in America
| Remarks for the Revised Edition

Subliminal Literature Bibliography and Review

A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

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