Research / Desk Reference
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
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"
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
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
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
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
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
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
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,
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
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
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
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
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
"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
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 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
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
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
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
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.
by Eldon Taylor - >