Brandishing the First Amendment: Commercial Expression in America

6. Advertising and Manipulation

chapter 6 Advertising and Manipulation There is a group of people who know very well where the weapons of automatic in›uence lie and who employ them regularly and expertly to get what they want. —Robert B. Cialdini, In›uence: The Psychology of Persuasion In the last chapter, I explored the question of the informational content of advertising and found that far from being informational, what advertisers mean by “information” is more like conditioning. I looked at the ways in which advertising and marketing are intended to create markets and begin to do so at the earliest stage possible, with children. Yet, when talking about advertising ’s capacity to mislead or manipulate adults, one usually encounters selfcon ‹dent assertions such as “I just ignore advertising” or “No one pays any attention to advertising.” Of course, advertisers are counting on the contrary, that millions will be moved by their efforts. In general, business writers and economists agree that advertising is an essential expenditure. So which is it— ›uff or substance? Are we immune or not? It would not seem like you could have it both ways. It turns out that most adults are far more susceptible to advertising than they like to think. Some of their susceptibility is located in aspects of the functioning of the human mind that have been the subject of intense study for the last several decades. Only recently has that research begun to make its way into the mainstream. But a great deal of it involved uncovering aspects of human cognition that were already well-known to marketers, and marketing professionals have been quick to exploit it where possible. 107 In Nudge: Improving Decisions about Health, Wealth, and Happiness,1 economist Richard Thaler and law professor Cass Sunstein draw on this research to argue that there is an “architecture of choice” and that we can take what we know about human reasoning to “nudge” people toward better choices. This is not news to marketers. They have been in the business of choice architecture for decades. Some would say the techniques involved constitute a little more than “nudging.” Sometimes it looks more like a shove or even a mugging. If the First Amendment is supposed to support and protect autonomy, persons’ free choice, then the manipulation inherent in much commercial expression frustrates that goal. The Architecture of Choice and the Architecture of Desire In Nudge, Thaler and Sunstein review research by psychologists and economists that offers evidence of the fallibility of human judgment. This research has led to the establishment of a new school of economics—behavioral economics . Behavioral economists were inspired by the work of Daniel Kahneman and Amos Tversky2 on bounded rationality. Kahneman and Tversky discovered that human beings reason in ways that will result in predictable failures of “rational” decision making. For example, the framing of questions matters so much that in response to a problem about whether to administer a vaccine where there will be a predictable number of deaths if the vaccine is administered and a predictable number of deaths if it is not, subjects recommend different actions depending on whether the question is framed as “lives saved” or “deaths caused.” Or, in an example of something called the “anchoring and adjustment effect,” test subjects asked what percentage of the members of the United Nations were African countries offered higher numbers after they had spun a roulette wheel rigged to stop on a high number than they offered when the wheel was stopped on a lower one. The roulette numbers caused subjects to “anchor” their estimates of the percentage of African countries in the UN, even though the numbers were obviously completely irrelevant to the question. Kahneman, Tversky, and many other researchers have identi‹ed many other such cognitive biases. Thaler and Sunstein refer to the features of human reasoning revealed by this and other research as the “automatic system” of cognitive processes. In this automatic system, people are, as Dan Ariely, a behavioral economist at 108 / brandishing the first amendment Duke, puts it, “predictably irrational”;3 that is, they will predictably and systematically make logical errors of judgment. Human beings use rules of thumb, referred to as heuristics, to make decisions. These rules of thumb often lead to errors. For example, the “availability heuristic” describes a tendency to make decisions based on the information that is the most readily available or salient, like deciding whether to buy a particular...