Politics, Private Space, and Total Persuasion
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)