The D.C. Circuit’s recent decision vacating the FDA’s graphic labeling requirements has prompted a flood of valuable commentary about compelled speech doctrine, including Richard Epstein’s, below. While analysis of the First Amendment issues is important, I view the R.J. Reynolds case instead as an example of how emphasis on formal legal arguments may detract attention from the underlying source of public opposition.
My current research focuses on the state’s use of emotionally-gripping graphic imagery in medical and public health contexts. I focus on two examples – the “fear appeal,” exemplified by the FDA’s graphic tobacco labeling requirements; and appeals to positive emotions, such as maternal bonding, exemplified by state laws requiring that women view ultrasound images and hear the heartbeat of their own fetus before consenting to an abortion.
Both types of appeals to emotion have faced constitutional challenges – as violations of First Amendment compelled speech doctrine, or imposition of undue burdens on reproductive liberty interests. But these formalistic constitutional tests do not, in my opinion, get at the heart of the public’s concern about government persuasion using emotional imagery. Few contemporary commentators are willing to challenge requirements for scientifically valid textual warnings. Rather, it is the use of images – diseased lungs, cadavers, fetal heartbeats – that strikes a chord of concern among many critics. Whether designed to inspire fear, love, or disgust, the government’s use of these images to persuade seems to run counter to the principles of democratic discourse.
Errol Morris has been quoted as saying that photographs, because of their immediacy, are so persuasive that they “stop us from thinking.” Indeed, psychological research supports Morris’ conclusion. Images are processed more quickly than words, and trigger emotional responses more quickly than do textual or verbal messages. Decisions based on such emotional responses are often made intuitively and automatically, long before any reasoning or rationalization could occur. Richard Posner summarizes the research thus: “[E]motion short-circuits reason conceived as a conscious, articulate process of deliberation, calculation, analysis, or reflection.”
These descriptions of psychological phenomena are, in and of themselves, morally neutral. However, literature on the ethics of persuasion suggests that attempts to override reason using emotional triggers ought to be approached with extreme caution, particularly where the persuader is in a position of power. Unfortunately, constitutional principles of government speech and personal autonomy do not reflect these concerns (unlike other areas of law, such as FRE 403’s limitation on prosecutors’ use of prejudicial evidence). This is not to say that the constitutional principles aren’t valuable, or that they should be modified to incorporate theories of ethical persuasion. Rather, I merely make the point that constitutional arguments are not the only tools for determining the legitimacy of emotional appeals.