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11 N.Y.U. Rev. L. & Soc. Change 331 (1982-1983)
First Amendment Dialogue and Subliminal Messages

handle is hein.journals/nyuls11 and id is 339 raw text is: FIRST AMENDMENT DIALOGUE AND SUBLIMINAL MESSAGES Many studies have now shown the effectiveness of subliminal psycho- dynamic activation.... It is now evident that a subliminal stimulus can bring about behavior change as a result of activating psychodynamic proc- esses. This raises anew anxieties that were stimulated in the 1960's of a 1984- type society in which our behavior is being secretly influenced by external forces. It also raises anew a criticism that has been made of the experimental method-that the people participating are treated as inanimate objects... I am convinced that both of these concerns have some justification, though it is difficult to say at this point exactly what is warranted and what is an exaggeration based upon remnants of childhood fantasies to which we are all vulnerable. I hope this question will be easier to answer as more results accumulate on what can and cannot be brought about by subliminal stimu- lation. In light of the considerations referred to above as well as more general ethical considerations, it is important for all of us utilizing sublimi- nal psychodynamic activation to bend over backwards to protect subjects.' I INTRODUCTION Subliminal persuasion is ubiquitous. In times past, subliminals- were confined to somewhat grotesque and ludicrous advertising. Today, subcon- scious behavior control is less of an art and more of a science. Clinically, subliminal behavior modification has proven effective.3 Culturally, the evi- dence is mounting that visual and auditory pseudo-hypnotic messages can incite sickness and violence with glints and whispers more insidious than messages that meet the eye or greet the ear.4 The use of subliminal persua- sion is increasing in department stores and in the workplace.5 We are instructed not only in what to buy but also in how to feel and to behave. The proposed regulation of subliminals has been opposed by advertising indus- try critics.6 This Note will explore the dilemma of regulating what we cannot see, hear or defend ourselves from. 1. Silverman, Ethical Considerations in the Use of Subliminal Psychodynanic Activa- tion (unpublished paper available from Research Center for Mental Health, New York University). 2. Subliminals are messages directed at or below the audience's threshold of conscious awareness. 3. See infra text accompanying notes 22-26. 4. See infra text accompanying notes 76-116. 5. See infra text accompanying notes 29-35. 6. See infra text accompanying notes 157-206. 331 Imaged with the Permission of N.Y.U. Review of Law and Social Change

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