Is there a talking lizard, with a cute Australian accent, implanted in your subconscious mind? There should be, because they’ve been paying literally billions over the last few years to put it there. Nevertheless, despite all the evidence that the advertising industry has won, and American intelligence and individual freedom has lost in the battle over your mind-space, this article would like to take up the cause of hope, against the advertising industry.
In our world of capitalism and business, advertising is a necessary function of doing business. I’ve mostly been a small businessperson in my adult career, I’ve advertised my businesses, I’ve written ads for my own and others’ ventures, and for grassroots political causes I’ve been involved in. I want to advertise in the future, for business or political ventures I might become interested in. As a consumer, I’ve sometimes benefitted from discovering new (to me) products, or from sales opportunities or better prices that I learned about through advertising. Advertising is probably here to stay.
Yet as progressive citizens of the United States, as inhabitants of the earth who wish to see our grandchildren also enjoy a relatively supportive planet to live on, I hope it’s clear to most of us that most modern advertising, video advertising in particular, has far more negative economic and cultural effects than positive effects. Advertising is a form of pollution, a pollution of the personal space of each of us, a pollution of our culture’s common human space, a pollution of our culture’s common social space. Advertising pollutes our public discourse, it pollutes our inner thoughts. Advertising pollutes our family and social relationships, and advertising – false, lying advertising conceived in pure cynicism and hypocrisy with budgets of hundreds of thousands of dollars – most certainly pollutes our political civic life. The advertising industry’s excellence of craftsmanship in their ability to manipulate our emotions from one second to another increases and exacerbates the negative effects of advertising on our common social space, even as it sometimes succeeds in its manipulative purpose of distracting us and making us laugh so a brand image can be implanted into our subconscious.
As citizens of the world who need a better future than our capitalist democracy is currently providing, I hope it’s clear to us that we cannot get to that better future without somehow bringing serious and fundamental reforms to the current advertising industry. Interestingly, the Supreme Court’s efforts to shield the freedom of advertising speech from government interference may have left two very interesting avenues for progressive action, arising ironically from the very excellence of manipulative craftsmanship in today’s video advertising presentations, and I’ll be discussing that after a few more introductory thoughts.
While I am here to criticize the advertising industry from a progressive stance, it’s important to note that people who value the preservation of their traditional culture, people who value the importance of their traditional religious beliefs, are precisely the people who should be criticizing the advertising industry the most. Modern advertising, with its desperate need to grab your attention, is perfectly willing to satirize any belief, make parodies of any cultural institution, or act like a bully to any identifiable population group – since it’s proven that an outrageous statement or image that seems to either defy cultural expectations, or exaggerate cultural prejudices, is an easy, and very effective, method for getting people’s attention. Video advertising in particular acts like a type of “super sulfuric acid” in slowly dissolving traditional beliefs and customs – that is, when it’s not acting like napalm or dynamite in directly burning and exploding traditional beliefs and customs. Yet somehow the cultural conservatives in America have become so unthinkingly “pro-business” in their reactions, that even though the modern advertising industry is more damaging to their cultural traditions, and to their ability to maintain their cultural traditions than it is damaging to the culture of relatively iconoclastic, free-thinking left-liberals, American cultural conservatives can, at least so far, be counted on to unthinkingly defend the right of advertisers to peddle the type of lies and nonsense that are dissolving the authority and foundations of the traditional beliefs the cultural conservatives claim to revere so fondly.
Now let’s take a look at how the Supreme Court, in attempting to set up a corporate-friendly legal regime protecting some free speech rights for advertisers, has inadvertently set up a loophole through which intelligent citizens can try to fight back against the corporate behemoth of deceptive advertising.
TAXING DECEPTIVE ADVERTISING
The Supreme Court has ruled on the free speech rights of advertisers in a number of cases, which generally establish that businesses do have some rights to free speech in advertising – yet that “commercial speech” is a form of speech which may be regulated, if the government has a “substantial interest” in such regulation. A summary of the law can be found here.
The established case law is fairly clear, and on the face of things, it generally looks like a very pro-business stance on the part of the Supreme Court. (I’m a progressive and a radical, so I do hope and pray for a future where we can get a Supreme Court that favors the people’s interests over the business owner’s interests.) According to the existing rulings, commercial speech is protected by the First Amendment against government regulation if several conditions are met. The commercial speech must be for lawful products or services and must not be deceptive, the governmental interest must be substantial, and the proposed governmental remedies must “directly advance” the government’s interest, and not be “more extensive” than necessary.
Do you get it? Just about all modern big-budget video & radio advertising IS IN FACT DECEPTIVE! And in being deceptive, it is therefore subject to regulation, including the possibility of prohibition of such deceptive advertising. It should be fairly easy to argue that the government does have a strong and abiding interest in protecting its citizen’s minds from deception, nonsense and selfish subconscious manipulation, as well as in protecting the federally-owned broadcast spectrum and other public forums from lies, deception and other forms of commercial pollution.
Further, ambitious young legal minds should be sharpening their intellectual swords to go after the theory that ALL advertising aimed at implanting a branding strategy into the consumer’s subconscious is BY DEFINITION deceptive, since the consumer’s true interest is to be skeptical of all brand claims – and even if a brand is a reliable supplier of quality potato chips or adult diapers or whatever for some period of time, it is in the interest of the consumer to remain alert for the possibilities that other brands are just as good, that brands which aren’t spending huge amounts to implant their image through advertising should be able to deliver the product at a lower cost, and for the probability that the known brand will eventually change or decline in ways that are not to the consumer’s interest. Even if the known brand doesn’t decline, it may be overtaken by other brands improving their products and services. Branding strategies are entirely logical for businesses with the resources to carry them out, yet from the consumer’s point of view, they are fundamentally deceptive, their basic purpose is to implant a necessarily false idea in our minds, somewhere deeper than rational thought is able to form and hold the ideas that the individual actually wishes to hold.
So it is absolutely legal and constitutional talk about taxing deceptive advertising, and/or advertising which is intended to amuse or distract the consumer while a branding image is implanted into the consumer’s subconscious mind (a strategy of deception on the face of it).
Again, the Supreme Court over the years has been trying to erect a fence that would protect the commercial speech of big corporations trying to get little citizens to hand over their money … but the over-reaching excesses of the corporations, in which EVERY automobile commercial has to have a disclaimer saying “uh, it’s not actually legal or possible to drive like we’re showing you,” where scores of huge corporations run ad campaigns filled with magical realities and foolish impossibilities and cartoon nonsense in order to sneak in a branding message to your subconscious, have created a situation in which the whole deceptive apparatus of modern advertising has placed itself in a trap where an active citizenry CAN demand regulation, according to the existing doctrines of the Supreme Court!
The inherent deceptiveness of branding campaigns is not just some fluke of whacky ad-men, it is part of a whole body of scientifically-planned, tested and proven theories of how to manipulate your thoughts to the advertiser’s advantage. No matter who you may believe yourself to be, no matter how strong-willed or individualistic you may believe yourself to be, the advertisers know exactly how to grab your attention with cultural images and emotion-inducing sound effects, they know exactly how to play your assumptions and prejudices to achieve any almost any mental effect they wish to create.
Is it in the interests of the advertiser to persuade you that white is black? They will carefully craft three different social narratives, each of which can be presented in 8 seconds, with very careful role casting and set design, showing social situations in which a person you can identify with does something silly or embarrassing, yet understandable – and all three will be tagged with the line, spoken by others addressing the embarrassed person – “Oh, you didn’t even know white was black?” This will be finished off with an eye-grabbing cartoon or computer generated image in which a number of white images are apparently visually transformed in black images, and with some appropriately punchy music will deliver the headline “White – Now it’s Black.” The negative images for white will have all been tested and proven to have negative emotional effects on people, and the positive images used for black will all have been tested and proven to have positive emotional effects on people. And it can all be wrapped up in thirty seconds.
Oh, and that’s exactly how they sell you cars, and how they sell you phone networks, and how they sell you prescription drugs and political candidates and everything else. And it is deception through and through, and citizens who care about their culture and the future of their culture should be able to lead their politicians to tax and regulate this commercial deception, no matter what outrageous claims the ad industry will come up with to defend themselves.
What would be an effective and efficient form of regulation, that would advance the interests of citizens and government without unduly burdening legitimate businesses that need to sell their products? I see a regime of taxation on total deceptive advertising spending, which would start with an absolute exemption on the first $100,000 or $150,000 that a company (or an individual) spends each year on advertising. So there will be no question of taxing your ads on Craig’s list for your garage sale, no question of taxing the flyers and coupons put out by your local pizza parlor or dog-washing salon. And even the worst fly-by-night hawkers of crappy Chinese plastic could put together a low-production-value 30-minute infomercial, with any kind of lies they like, and run it three or five times late at night on the cable channels, and not have to pay any tax because they are still under the $150,000 exemption. The intent of the exemption is to is precisely to exempt nearly all local businesses and everyone attempting to establish a business. A business would typically have to be up to $5-600,000 in sales in a very high-margin field, and up to $3 million or more in sales in most low-margin fields, before it would start feeling any effects of deceptive advertising taxes, no matter what they were saying or presenting.
For businesses that are spending more than $150,000 a year on advertising, I envision an after-the-fact tax rate of 3% to 12 or 15% of total spending, depending on the degree of deception that is found to be occurring. If advertisers were willing and able to limit themselves to provably factual statements about the virtues of their products, the availability at various retail outlets and prices, and non-exaggerated claims about the suitability of the products for various consumer needs, they get home free, no tax for deceptive advertising is incurred.
For the normal stretching of claims that occurs so easily once one starts writing an ad – “You’ll love the taste of new Sugar Oatie O’s!” – we have a category called something like “moderate narrative exaggeration” and it gets a tax of 3% of the company’s total spending on advertising (after the exemption). When we get presentations like a little drama showing the whole family being transformed by eating new Sugar Oatie O’s, or the ad that’s actually running currently that shows the woman going to her high school reunion and getting the guy she’s always wanted, thanks to her new skin-disease prescription drug – and not getting any of the horrendous side effects that are legally required to be listed that take up 90% of the ad’s time – we have a category called “extreme narrative exaggeration” and it costs a 6 or 7% tax. Using cartoon characters, human-like talking lizards and other magical realism to dramatize your message gets you a 9 or 10% tax rate. And going on the theory that branding campaigns are always deceptive, saturation buys of advertising space to run messages that use humor or other distractions to sneak in a branding message should be a special category of its own that also earns you at least a 10% tax rate.
And for those who need to put together a political advertisement that takes a third party’s negative interpretation of something that a politician said or did in the past, exaggerates that into a more direct threat-statement aimed at raising the fears of voters, uses creepy music and huge block-font print messages to work on voter’s subconscious emotional responses, and thus trashes one candidate while never mentioning the opposing candidate, and hides the ad’s sponsorship behind a committee name that has also been chosen to play on voter’s emotions, there needs to be a top, punitive tax rate of 15% or more, and legal language that prevents one individual or group of individuals from setting up dozens of such committees to game the initial exemption of the first $150,000 of ad spending to their advantage.
The tricky question is, of course, who makes all these judgements and interpretations to assess the tax, and I do see some sort of 5-person board, under the FTC or the IRS, to retroactively look at a company’s advertising over the previous time period and make a tax assessment. Of course the professional reactionaries and the economic libertarians would hate this, but it is a reasonable response that protects the interests of the government in ensuring that citizens are not being deceived, and that the common cultural space is not being overly polluted, gives businesses and political candidates an incentive to construct ads that are not deceptive, and does not unduly burden businesses – honest businesses incur no burden, and even the deceptive ones still get to poison the air with their crap. They just have to pay a tax on it, after a significant initial exemption, to compensate society (in the form of the federal government) for their misuse of the intellectual environment.
And if the professional reactionaries can still win an election without their deceptive negative ads, or even with them and paying a tax on them, of course they can put their flunkies on the board, and the board will suddenly find all sorts of excuses to give companies no tax assessment at all, or assessments at the lowest possible rates.
An even more elegant and libertarian solution to the problem of deceptive advertising lies in changing the legal assumption of “caveat emptor,” or “buyer beware,” that underlies nearly all business and commercial law. If advertisers are put on the legal assumption of “caveat vendor,” or “seller beware,” and consumers are allowed to bring lawsuits against deceptive advertising, the problem practically solves itself. The rational company quickly learns to use just a few saving adjectives in its low-key, fact-based advertising – “you may find that new Sugar Oatie O’s really taste great, and probably help you start your day with the nutrition you need” – and the deceptive company either changes its behavior or gets quickly driven from the marketplace after paying off consumer’s successful lawsuits.
The potential for overwhelming courts and businesses with lawsuits under such a regime is real, and some rational limits could well be written into the law. Perhaps there should be a mandatory class-action requirement, the complainants would need to get 1% or so of the population of the jurisdiction to sign on to a class lawsuit in order to be heard – whatever number works out so that it is easy to reach it for truly abusive business liars, yet tough to reach for cases where there are more gray areas. Alternatively, plaintiffs might be limited to those who actually suckered for the ad and forked over money to the possibly deceptive business.
Other important details would be that cases must be brought in the complaining customer’s jurisdiction, and that companies must have proper identification on their products to enable victims of possibly deceptive advertising know who they’re looking for. And if such law does lead to a huge wave of cases that threatens to tie up courts, I would not object to procedural laws that set up special courts with accelerated procedures such as no oral arguments or appearances whatever, everyone would submit their paperwork and special judges would make their determinations within a 30 or 60 day time limit.
Again, if companies would just sprinkle their ads with “it may be” and “probably” they could argue their way out of most lawsuits, and thus over time lawsuits wouldn’t be sought in cases that were not likely to be won by the plaintiffs. Of course this might lead to lawyers aggressively specializing in assembling such classes and cases – and wouldn’t the Chamber of Commerce types have some fun going after a lawyer they believed made deceptive ads to do so? After an initial period of testing by both sides, it is likely the whole field could become self-regulating, with little or no burden on the courts. And the advertising the consumer is subjected to will hopefully be much less burdensome to both their conscious and subconscious minds.
For my satisfaction, either the law should be written so that the use of humorous distractions, cartoon characters, magical realism or unrealistically unbelievable social situations to establish branding strategies is necessarily considered deceptive, or judges need to establish this through case law. While I would still consider all branding strategies to be inherently deceptive to the consumer’s best interests, if companies could only carry them out in a fact-based way – “you may need plumbing products, and you probably want the best plumbing products. We’ve been making plumbing products for 85 years, thousands of independent plumbing contractors consider our products reliable and economical” – that would be a big reduction in contemporary intellectual pollution, and a big reduction in the amount of nonsense being carried around in the subconscious brains of hundreds of millions of consumers, and I would be happy with that.
I’m too much the historian to unequivocally look forward to unalloyed good endings in human affairs, yet I remain hopeful that a legal regime of “caveat vendor” that allowed the public to take legal action on their own initiative against deceptive advertising could lead to a much better environment in this area of human life, with only deceptive businesses being disadvantaged. Advertising could and would flow as before, in terms of volume, yet hopefully in a much more calm, fact-based atmosphere that actually showed respect for the customer’s intelligence. There would be no government board inspecting advertising either before or after the fact, and after an initial period when some grey-area exaggerations get some frivolous lawsuits, there would be no undue burden on honest businesses and political candidates, and only those businesses and political candidates who need to rely on deception to promote their causes would be disadvantaged.
And at the Fox News empire, they would trash me for “talking the fun out of advertising,” and I would be glad to bask in their criticism, knowing what I had done to help free the subconscious minds of my fellow Americans from their abuses and pollution.
GETTING FROM HERE TO THERE
Of course, all of this speculation on my part is far, far in advance of the actual state of American culture and politics at the beginning of the year 2011, and I could not criticize anyone who criticized this article for engaging in far-out fantastical speculation in this matter. It does seem more likely right now, that instead of my musings here coming true, that a future President Bachmann or Santorum would push to allow big corporations to use some sort of new microwave or neutrino-beam technology to send advertising messages through the walls of our homes and directly into our brains – just before that President bumbles into a nuclear war with China, the oceans die, and the cockroaches take over. (The talking lizards might then evolve in another million years!)
No, right now the weak and cowardly Congressional Democrats can’t even protect themselves against the hypocritically false, mouth-foaming TV advertisements that have been unleashed by the un-precedented Citizens United ruling from our biased Supreme Court; they certainly aren’t going to be passing any laws that put the brakes on big corporations. And even if liberals and progressives were able to win Congressional seats for a majority that actually represented liberals and progressives, the politically-biased Roberts-Scalia-Thomas clique that dominates our Supreme Court would make up some new arguments that invalidated the kind of laws I’ve been talking about in this article.
So we Americans who can still think rationally, without magical realism and talking lizards cluttering up our brains too deeply, we have tons and tons of work to do before we’ll be making any of the reforms I’ve discussed here (and I hope I’ve addressed those issues elsewhere). And there are so many pressing problems facing modern America, that reforming the sicknesses of today’s advertising industry is far down the list of domestic policy changes we’ll be making if we can ever overcome the obstacles facing actual liberal politics in 21st Century America.
Nevertheless, these are good issues to be thinking about and to be discussing, because the manipulative excellence of the craftsmanship in today’s video ads is only going to become more insidious, more penetrating of our personal mind-spaces, and more polluting to the kind of cultural and intellectual public common space we should be treasuring more dearly. And it is a good issue to bring before the public, as they do understand at some level that most advertising is nonsense and deception, and that’s why hundreds of millions of American consumers do their best to “tune out” advertising on a conscious basis (which of course leads the big advertisers to work even harder on reaching our subconscious minds).
And as a parting shot, there is one non-legislative program that sincere independents and liberals should be able to join in now, that takes on one of the worst portions of modern advertising’s assault on American ideals of liberty and self-reliance. In the wake of the tragic attacks on Congresswoman Giffords and Judge Roll in Tucson this January, there have been many calls for a greater civility in American public life. Well, can the rich, powerful and successful members of the National Association of Broadcasters do anything to advance the cause of civility? Yes, they can. The National Association of Broadcasters and the state broadcasters associations are fairly tight industry associations with a near-universal membership among broadcasters, and they do, if they wish, have the power to enforce some basic, minimum standards for negative campaign advertising over broadcast radio and television. We’re not talking about achieving utopia here, we accept that negative advertising will exist, just some basic minimums of civility. First, the attack must be based on something the target actually said or did in a reasonable past period of time, 2 or 4 years, and not based on the advertiser’s, or some third-party’s negative interpretation of what the target did. If the claim is that the candidate voted for/against a particular issue, but this vote was part of a large bill that addressed many topics, that would have to be noted. Second, all music is disallowed; they can have their claims in words, but they can’t have music’s ability to communicate (negative or positive) emotionality. Third, no photo-morphing of the target candidate into some other (negatively-regarded) person or image – no matter how closely the attacking advertisers want to tie the two together. All claims of a link between the attacked candidate and another negatively-regarded person or concept must be made in words, of course without music and without photo-morphing or jump cuts or subliminal images or any other video trickery. And fourth, any claims on the future behavior, or the results of the future behavior, of the attacked candidate must be reality-based and relatively civil. You won’t be able to claim “if candidate X is elected it will lead to fascism/communism/apocalypse!”, but you could say things like “if candidate X is elected he will most likely continue to vote against (our issue).” Fifth, if the negative ad is being placed by independent groups, they must include a brief statement of who they do wish to be elected to the position in question – no fair attacking the target and never mentioning the candidate they really desire (and if they favor abstention, a spoiled ballot campaign or a write-in or whatever, they have to say that). And finally, all images of guns or violence are disallowed in either negative or positive campaign advertising – no matter how closely the candidate wants to tie himself to such imagery. They can express their love of guns in words, but no showing one. It just isn’t civil, or conducive to civility.
This is an issue that well-intentioned people should be able to take to the National Association of Broadcasters and state broadcasting associations right now, and ask respectfully for attention and action. Of course the National Association of Broadcasters is not in the business of preventing its members from running advertisements, indeed it wants them to be successful which means selling more ads. But no ad spending need be turned away under this policy, they just need to craft their message with a little respect for our common future. The question is whether the National Association of Broadcasters is going to do something concrete to fulfill its purposes of making America a better place, and its broadcasters into even better and more respected citizens than they already are.
Or are they going to tell us, in essence, that spreading hate and incivility in our political life through deceptive advertising and negative emotional manipulation are just fine, as long as the members of the National Association of Broadcasters rake in the money during campaign season? (Unfettered by the Citizens United decision, spending on broadcast ads has already skyrocketed.) America’s good citizens who do wish for civility need to know the answers to these questions.
It would be great to see all sorts of independent, concerned groups from both political and the more general community raising questions like this with our broadcasters. It’s a small first step, on a very long road that will have to be traveled before the American people can actually have a tangible, meaningful victory over corporate power invading their most personal spaces. But the advertising flank is a good flank to fight on. Nearly everyone understands how annoying advertising can be, advertising is a very tangible evidence of corporate power over individuals, markets and governments, and the very excellence of the combination of scientific research and creativity with which ads now manage to manipulate us has carried the industry into a brave new world, where established law allows activists to find ways to legislate against their excesses.