There is no actual federal law against the use of subliminal messages in advertisements. There are some regulatory policies, however, that prevent its use on television and radio and in theatres. The policies of some industry self-regulatory boards and associations also prohibit the use of subliminal technology in broadcast, recorded and filmed productions presented to the public. State and federal courts have generally ruled against the use of subliminal advertising, though they have been less likely to award damages in such cases.
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Several proposed laws banning subliminal advertising have been introduced in the U.S. Congress, but all have died in committee and never gone to the floor of either the House or Senate for a vote. California and other states have considered anti-subliminal advertising laws, but none have enacted those laws. Since research has failed to prove that subliminal advertising is effective, there has been little pressure for anything more than regulation and self-regulated codes of professional practice.
The Federal Communications Commission revokes the broadcast license of any company that can be proven to use subliminal messages. The Bureau of Alcohol, Tobacco and Firearms added regulations prohibiting subliminal ads and messages promoting alcohol.
In 1990, Nevada Court Justice Jerry C. Whitehead ruled in "Vance vs. Judas Priest" that the First Amendment protections of freedom of speech don’t extend as far as subliminal messages. Upheld by later courts and the U.S. Supreme Court, this legal precedent established that subliminal messages are aimed not at the person’s conscious mind but rather, seek to coerce individuals by speaking to the subconscious brain without the permission of the person subjected to the subliminal messages. Subliminal communication is therefore not protected and may be prohibited or restricted. Because the subconscious mind is the target, the precedent declares that neither the First Amendment’s protection of speech or the press applies.
National Association of Broadcasters
The National Association of Broadcasters (NAB) established the Code of Practices for Television Broadcasters in 1951. Broadcasters who complied were allowed to display the Seal of Good Practice to show that they subscribed to the code. In 1958, the code declared that broadcasting “any technique whereby an attempt is made to convey information to the viewer by transmitting messages below the threshold of awareness” was prohibited. Although the code was rescinded in 1983 under pressure from broadcasters, the NAB still calls subliminal advertising “impermissible” by its members, though little is being done formally to curb the use of subliminal advertising.
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