Politics, Private Space, and Total Persuasion
posted by Dave Hoffman
A lunch today with a colleague at another school, coupled with an article in the Wall Street Journal, has brought me to back to a topic I blogged about back in January: Total Persuasion. As I suggested, there are analogies to be drawn between the government’s defunct secret possibly ongoing program to gather reams of information about its citizens and corporations’ desire to grab consumer mind-share by every persuasive avenue possible. Indeed, we’re rapidly approaching a time when it will be exceedingly difficult for the law to draw lines between advertising and not-advertising; between fraud and persuasion; and between censorship and consumer protection.
These claims are easy to overdraw, so let me give you an example and a theory to help set the stage for the discussion. In today’s Journal, John McKinnon has a interesting article about Sara Taylor’s decision to leave her job as the White House’s political director to join the private sector. Taylor is an expert in microtargeting, a marketing technique developed by corporations to segment their consumer markets by mining data to learn more about the structure of consumer’s preferences. According to McKinnon, microtargeting was “honed” by political operations to “more effectively zero in on voters’ emotion triggers,” and uncover groups of voters that are susceptible to future efforts. Taylor sees a “big future” for taking such political lessons back to the corporate world by “helping corporations focus on potential customers’ . . . feelings about buying a product or service.”
There are some roadblocks in this prosperous path, as the article points out. Most salient, businesses are “more constrained in the claims they can make” than politicians, presumably by the law of fraud (in its various guises). But there is a solution to this problem: encourage consumers to make their own persuasive advertising by creating “social networks around products and brands . . .” In the future, we should anticipate that such social persuasion will become an increasingly prevalent aspect of corporate marketing efforts, just as politicians have worked to co-opt social networking sites for their own ends.
Why? Because consumers have fewer defenses to social persuasion, and aren’t cynical about it yet. Moreover, social persuasion is probably less subject to legal sanction in the general case (indeed, it may be immune under circumstances where the same language if spoken by the corporation would be actionable). It is also, obviously, cheaper to produce. The downside (loss of control over message) is probably something that corporations will learn to live with. (I thank my lunch companion for pointing this problem out to me!)
What’s wrong with a society in which most speech that you hear is designed to persuade you to consume? When framed that way, some might immediately respond: nothing! After all, no one is being compelled to any particular purchase. If the consumer market is efficient, and consumers had a taste not to consume, wouldn’t savvy marketers satisfy the taste with a unpersuasive campaign? (The idea is silly on its face, but isn’t it sort of what Saturn and Berkshire Hathaway were/are up to?) Even assuming that the consumer product market is somehow irrational, marketers would presumably compete to satisfy whatever inefficient desires are extant.
But I doubt that market rhetoric is going to provide satisfying answers to whether the law should work to hinder a total persuasion society. I haven’t fully thought this issue through, but my starting point is an essay by Jonathan Franzen called Imperial Bedroom, in his book How to Be Alone. Franzen attacks privacy advocates for focusing on privacy as just problem of being from free from others’ (corporations, the government, space aliens, the U.N., etc.) prying eyes and grasping hands.
Instead, the real loss of privacy in modern society is the “public sphere.” He argues that Americans increasingly do not differentiate between public matters and private ones, that there are few places where “codes of dress and behavior are routinely enforced, personal disclosures are penalized, and formality is still the rule.” Elsewhere, private life is “brutally invading” public spaces, through the media, cellphones, public conversations about private matters, and, in short, a “pajama-party world.”
Franzen contrasts this world with a “genuine public space,” a place where “every citizen is welcome to be present and where the purely private is excluded or restricted.” He suggests, interestingly, that legal spaces are among our few remaining public places: courtrooms and jury pools, along with art museums and some workplaces, are the rare place where discussions about personal matters are generally missing. (Incidentally, one of unforeseen losses in my move from law practice to the academy is that this public-sphere workplace model is less present. There are compensations for this loss, to be sure, but it is felt.)
There is a connection between total persuasion and the loss of public space. This connection is deeper than the mere fact that public places are being renamed in service of persuasion. I’m not the first to note that the problem with persuasion’s ubiquity is that it makes us unable to walk in public without feeling like a targeted consumer. To the extent that our fellow citizens are harnessed to this persuasive effort, this lack of noncommercial space will be all the more keenly felt.
Is the right to be un-persuaded, to develop preferences that are all yours, one that the law recognizes? Not currently, although the movement to get advertising out of school suggests that there is a something to this. Stay tuned.
(Art Credit: Kenney Mencher, Austen’s Persuasion, 2005)
May 21, 2007 at 8:50 pm
Posted in: Advertising, Behavioral Law and Economics, Consumer Protection Law, Contract Law & Beyond, Culture, Economic Analysis of Law, Law and Psychology, Politics
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Responses (3)
Belle Lettre - May 22, 2007 at 12:35 am
Thanks for a great and interesting post. I’m not going to position myself on Franzen’s side (would be hypocritical) or on the opposite (since I don’t belong their either). Rather, I would offer these two thoughts:
1) The proliferation of blogs and online journals have been key to eroding Franzen’s conception of the public sphere. My own blog, for example, has been characterized by Dan Filler as “a (particularly nice) mix of the personal and academic.” I won’t get into whether that’s good or bad, but I will note that nowadays, even on what one would call “academic” (as opposed to the personal blogs of academics) blogs are riddled with personal observations. Dan Markel offers his travel tips on Prawfsblawg. Baby announcements are routine. Let’s not even discuss such diary sites as Xanga or LiveJournal.
My point is, even as blogs have offered academics a new forum for their roles as public intellectuals, this public space has become a refractory for the private as well.
Indeed, what to make of blogs that are both personal and academic, and commercial to boot? Most blogs run ads. How do you feel about this space being co-opted by commercial interests? The commercial aspect arguably erodes both the private and public interests of the space.
2) Blogs are inextricably linked to social networking. Blog communities are not a thing of imagination–check out the Co-Op’s own blog roll to the right. This serves, I believe, an important function, a sort of virtual community for those who would otherwise feel isolated (for instance, the community of medievalist bloggers are surprisingly large in number relative to their percentage at any particular institution). Moreover, many social networking sites permit a blog option–either hosted on their own servers (MySpace) or through “importing a note” (Facebook). Again, these sites are overrun with ads.
It seems inexorable, this erosion of the public sphere, the commingling of public and private, and the commercialization of both.
Frank - May 22, 2007 at 3:23 pm
“What’s wrong with a society in which most speech that you hear is designed to persuade you to consume?”
The “wrongness” of it can be framed on any number of levels, but let’s just focus on self-interest. The U.S. savings rate has gone down from around 10% or so in the 1970’s/early 80s to a negative figure today. This is just as the switch from defined benefit to defined contribution pension plans make personal savings for a decent retirement all-important.
Moreover, as Robert Frank has shown, consumer spending puts us on a treadmill; as more and more of our peers go into debt to buy things, living standards rise, such that the one person on the block without the flat-screen TV (or whatever the must-have du jour is) is seen as poor, cheap, or puritanical.
Check out this article on the “high cost of easy credit,” and this excerpt:
“Their debt escalated when they decided to get married. They paid for rings, a reception, a honeymoon and a new bathroom — about $50,000 in a seven-month stretch.”
It seems totally irrational to me for a couple earning 60K a year to rack up that much consumer debt so quickly. But as Rebecca Mead has shown, the peer pressure to put together a wedding extravaganza in today’s society often overwhelms fiscal prudence.
Jed Adam Gross - May 22, 2007 at 10:57 pm
A recent case of possible interest: In IMS v. Ayotte, New Hampshire’s Attorney General evidently argued that “limiting unwarranted intrusions into the decision-making process of prescribing physicians” could serve a substantial state interest. The state’s Federal District Court overturned the commercial speech restriction at issue, distinguishing the case at bar from situations “involv[ing] solicitations that invade the tranquility of the home or that target vulnerable victims.” Of course, decision-making processes can occur in public spaces, not just in the privacy of the home or doctor’s office.
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