Posts Tagged Kovacs v. Cooper
Noise Wars review looks at privacy, audience captivity
Posted by R. Freedman in Audience captivity on January 28th, 2010
Do we have a constitutional right to privacy? Since 1965 the U.S Supreme Court has built a trail of case law saying a right to privacy is enshrined in the concept of “liberty” in the Fifth Amendment (“nor be deprived of life, liberty, or property, without due process of law”).
The 1965 case that started this trail going was Griswold v. Connecticut, which said people’s right to privacy protects against government prohibition of their use of contraception in their home.
Thanks to a review of my book Noise Wars
The case was Public Utilities Commission v. Pollak and involved the piping-in of commercial radio on a commuter train in Washington, D.C., in the early 1950s. People objected to being made a captive audience to media that they couldn’t ignore or tune out, but the court ruled that riders had given their tacit approval of the media by boarding the train.
In his dissent, Douglas said many people had no choice but to take the train. But, more fundamentally, the force-feeding of content that people can’t ignore constitutes a violation of their liberty, which includes their right to privacy.
Douglas’ dissent is essential reading for anyone concerned about the proliferation of captive-audience media, but the fact remains that he failed in his attempt to enshrine the idea of privacy as a subset of our right to liberty in the case.
But he did succeed about a decade later, in Griswold, and as the reviewers at Legal Legacy say, it’s an interesting question to look at how the post-Griswold right to privacy interacts with the idea of audience captivity.
The Supreme Court has already said that government has the right, without violating people’s right to free speech, to regulate the force-feeding of intrusive content. That right was established a few years prior to the commuter train case when the Supreme Court in Kovacs v. Cooper said it was OK for a city to impose a ban on audio trucks (trucks that drive around blaring audio content from a speaker).
Thanks to Legal Legacy for such a thought-provoking review of Noise Wars.
Survey: is out-of-home TV good, bad, or both?
Posted by R. Freedman in Audience captivity, Media noise, TV Turnoff on December 3rd, 2009
Many people like having TV in public places. The TVs are a way to pass the time while you’re waiting to catch a flight or eating at a restaurant. Now that out-of-home TV is migrating to many other places—the backseat of taxis, for instance, and to elevators, buses, subways, trains, street corners, office and hotel lobbies, and doctor’s waiting rooms, among others—it’s appropriate to ask whether this is too much.
Some people find out-of-home TV distracting and irritating, at least some of the time. Others find the TVs an invasion of their personal space. After all, the audio and video of TV in a public place washes over everyone indiscriminately. For some people, that’s just not right.
What do you think? Take this 10-question survey and help us get some insight into the good and the bad of out-of-home TV. It only takes two minutes to participate, and it doesn’t ask you to provide any contact or other information.
—R. Freedman
The alternate reality of captive-audience media
Posted by R. Freedman in Audience captivity on September 9th, 2009
When you read material provided by media companies that specialize in captive audiences it’s impressive the lengths they go to to reassure us that we like being made captive to their media.
We learn from their press releases and Web sites that we like to have our lives improved upon by having infotainment and commercials to watch while we wait in line at a store or ride a bus or pump our gas. Captive-audience media companies have lots of surveys, too, that show us how much we love having audio-visual media pushed out at us. We certainly benefit from knowing that large percentages of us love to have a TV in front of us at all times to protect us from having to confront our world without the virtuous content of targeted and engaging programming.
It’s because we so clearly love having our lives improved upon by having media pushed out to us unasked for that it’s hard to understand why so many people dislike—and even get angry at or feel insulted by—being made captive to TV. It’s almost like the two sides are living in parallel universes or that one side operates in an alternate reality.
But there you have it. Despite the virtuousness of the content, there seems to be this large and vocal minority that just doesn’t get it and insists on taking issue with being made captive to intrusive and invasive media.
When captive-audience TV started showing up in gas stations, there was the inconvenient fact that quite a number of people made comments like this one:
“I will not go to stations that have [TVs on gas pumps]. So, as a result, I have not been to a Shell station in months. (I live in the Chicago area and they are the only stations with them so far.) I can only hope other people are doing the same thing. If not, this sort of irritating constant sales bombardment will start going on everywhere.”
And when TVs started becoming more common in grocery store checkout lines, there were off-message comments like this one:
“The minute I see my first TV at a checkout, I’ll tell the manager, ‘Watch me. I’m about to walk out of your store because I can’t stand TV. You won’t see me again until all the other stores in the area have the same damn thing and I must put up with it or starve.’ No, no, don’t try to tell me how Most People seem to like it. I’m not Most People, I hate it, and I’m leaving now, empty-handed.”
And when captive-audience ads started showing up on our cell phones as text messages, suddenly we started seeing comments like this one:
“I serve notice to all those who force me to see their ads by interfering with my ELECTIVE reading – NEVER would I purchase your product. At the same time, I will say the same thing to those who think it’s clever to blast my hearing with TV commercials that are 100 times louder than the programming. My solution is simple – I mute ALL commercials. Cha-ching. That’s the sound of the cash drawer slamming on your fingers.”
The reality is, many people don’t like having content pushed out at them. Audio-visual media is by its nature intrusive media. Unlike print, in which we can choose to consume the content or not, audio-visual media is “push” media that takes away our ability to choose. Rather, we’re given only the option to try to ignore it. And each of us differs in how effectively we can ignore push media.
To be sure, the U.S. Supreme Court has weighed in on the issue of captive-audience media and found in favor of the captors rather than the captives. But at the time the court looked at the issue, in 1952, push media was as rare as a Japanese car on a street in the United States. It was a non-issue, and the court looked at a single instance of audience captivity. Today, captive-audience media is becoming ubiquitous and stands to fill much of the space in which we conduct the business of our lives: stores, buses, trains, street corners, building lobbies, elevators, restaurants—you name it, it’s coming.
What’s more, the Court had looked at a different type of captive-audience media a few years before the commuter-train case and ruled against the captors in favor of the captives. That case, Kovacs v. Cooper, confirmed a municipality’s right to outlaw the broadcast of captive audio content on a public street. So the legal right of media companies to force-feed intrusive media to people is not at all clear cut.
Push media is replacing print and other “pull” media and is poised to become the dominant media of our future. For that reason it’s time to revisit the issue of audience captivity. Too many people simply don’t subscribe to the rosy picture that captive-audience media providers try to paint in their press releases and on their Web sites. The reality is, grave differences separate these two sides. We don’t live in parallel universes. We live in one universe, and these differences need to be reconciled.
Take our survey
Is TV in public places good or bad? Let us know your thoughts in this Media by Choice survey on the good and the bad of TV in public places such as elevators, taxi cabs, subways, trains, buses, airport gates, doctor’s offices, office and hotel lobbies, and so on. Click here to take survey.
Book shines spotlight on boom cars, other noise
Posted by R. Freedman in Audience captivity, Media noise on September 2nd, 2009
Quality of life suffers as noise encroaches on shared environments
In the first systematic look at boom cars, outdoor TV, and other “captive-audience” media, a book released this month from Algora Publishing in New York City says a values conflict similar to the one over secondhand smoke is growing because of audio and video technologies that increasingly take away our ability to choose the media we consume.
Written by Robert Freedman, a 25-year veteran communications professional, Noise Wars: Compulsory Media and Our Loss of Autonomy
“Noise has been the Cinderella form of pollution and people haven’t been aware that it has an impact on their health,” an environmental official says in the book.
“The ‘outdoor entertainment’ equipment pushed by the home electronics industry in the form of outdoor loudspeakers and televisions for the porch and patio makes us wonder, what next?” says Karen Orr of the League of Conservation Voters. “Mega bass boom systems for the riding lawnmower?”
“You used to reliably move to the suburbs and find peace and quiet,” says Les
Blomberg of the Noise Pollution Clearinghouse in Montpelier, Vt, in an interview reproduced in the book. “But now “we’ve made our suburbs noisy. We can’t all buy 1,000 acres and hide in the middle of it.”
The book quotes Ted Rueter, president of Noise Free America, on the efforts of his and other organizations against cars with ultra-loud stereos. “Boom car owners think they’ll beat us down into submission. Their culture is violent, vicious, and hate-filled.”
The book is the first to look at noise—both visual and audio noise—through the filter of audience captivity: the intentional effort by commercial interests to impose noise on consumers in such a way that they can’t escape it. Among these efforts is the move to introduce TV to settings in which consumers are forced to watch it such as taxis, buses, elevators, gas stations, street corners, school classrooms, and every category of retail setting.
“The minute I see TV at a checkout, I tell the manager, ‘Watch me. I’m about to walk out of your store because I can’t stand TV,” one person says in the book. “You won’t see me again until all the other stores in the area have the same damn thing and I must put up with it or starve.’ No, no, don’t try to tell me how most people seem to like it. I’m not most people, I hate it, and I’m leaving now, empty-handed.”
“I will not go to stations that have TVs on gas pumps,” another person says. “As a result, I have not been to my neighborhood gas station in months. I can only hope other people are doing the same thing. If not, this sort of irritating constant sales bombardment will start going on everywhere.”
“I serve notice to all those who force me to see their ads by interfering with my elective reading. Never would I purchase your product. Cha-ching. That’s the sound of the cash drawer slamming on your fingers.
The book talks about the difference between audio and video “push” media and traditional “pull” media such as print. With “pull” media, the audience decides when and where to consume content; with “push” media, the content pushes out to people whether they want to consume it or not, creating a suffocating environment for those who are unwilling to be made a captive.
The book looks at two landmark captive-audience Supreme Court cases, Public Utilities Commission v. Pollak (1952) and Kovacs v. Cooper (1949). In the first case, a divided Court confirmed a public transit agency’s right to pipe in commercial media to a captive audience of commuters. Although the case didn’t bar audience captivity, William O. Douglas issued a stinging dissent that raised unsettled questions about audience captivity, and Felix Frankfurter abstained, saying he found audience captivity so personally distasteful that he couldn’t trust himself to rule on the case objectively.
In the second case, the court confirmed a municipality’s right to outlaw the broadcast of captive audio content on a public street, thus siding with critics of audience captivity.
Noise Wars
Here’s what readers are saying about the book:
“This lively and well-researched work talks about how all this noise affects our civil liberties and our peace of mind. . . . Freedman appends William O. Douglas’s wise comments on the matter, “Compulsion which comes from circumstances can be as real as compulsion which comes from command,” and says fellow Supreme Court Justice Felix Frankfurter was so angry about the issue that he didn’t feel he could render a fair opinion at all. . . . Freedman brings his own contemplative voice to the question, quoting philosophers as well as jurists. And adding a dollop of writer Ray Bradbury and composer John Cage for good measure.”—Roy Harris, Jr.
“Written with a deep understanding of the role of media in our lives by a veteran award-winning print and Web editor, the book is valuable for several reasons. It confounds the skeptics by marshaling the evidence of noise pollution’s physiological and psychological effects (up to and including suicide and murderous acts). It explains First Amendment case law, and it doesn’t simply bash the ‘evil corporations’ but explains the economic pressures that are leading them into captive audience business ventures.” —Chris Wright
“The book has excellent research behind it. As I read the book I stopped and thought about all the media that intrudes on my life, as well as the media I invite into my life…. And the unintended consequences that result from the bombardment of noise.” —Elisa Robyn
“While most of us are focusing on the transition away from the days of push media (i.e., being forced to watch programs on a limited number of channels), another–more insidious delivery of media–is taking place right before our eyes. Freedman refers to it as “compulsory media,” music and audio advertisements that are piped in at the grocery store, the television that plays above the gas pump, or the commercial that runs when you enter a cab. Freedman does an effective job of calling attention to the problem and arming us to do something about it.”—Steve Roll
“Our freedom is at risk as more and more outside media infringes on our personal space, on our shared public spaces. Our right to choose is transgressed, lost. We become a captive audience, against our will, to television advertising, boom cars, muzak, etc. And this is especially the point of the book: the scale of annoyance in the breach isn’t important; It’s the fact that there is a breach in our right to choose is what matters.”—Narshe Colliery
Captive-audience media attracts 9,701 critics
Posted by R. Freedman in Audience captivity, Media noise, TV Turnoff on August 14th, 2009
Since launching this blog about four months ago, on April 19, there have been 9,701 visitors, or an average of 80 visits a day. We would call that a success, and we’re interpreting that to mean there’s considerable interest in the topic of captive-audience media.
The most visited post by far is On noise, a judge who gets it, from July 12, that looks at the justice meted out by a judge who threw the book at rude renters who did more than thumb their noses at neighbors who asked them repeatedly to turn down the music; they tried to vandalize their house, with some success. That post attracted almost 2,650 views and generated comment on far-flung sites, some of which I reproduce in another post.
The most clicked-on link so far in any of the posts goes to a database of malicious ads from car stereo manufacturers that’s maintained by Noise Free America. That this link is the most clicked-on is not surprising, because those stereo ads are, to put it mildly, unbelievable. Their common theme is that upsetting people with the loud noise of boom cars is a laugh, and the more upset people get, the bigger the laugh it is. The ads are the definition of incivility and Noise Free America deserves credit for assembling them in one place.
In our book, boom cars and rude neighbors who refuse to turn down the volume of their media, whether music from a stereo or chatter from a TV, are forms of captive-audience media because boomers and rude neighbors force their media onto others. Although they don’t try to monetize their captive audience the way commercial media companies do (ads on bus TV, for example), they commandeer common space for a private aim.
Here’s a rundown of the top 10 posts and the top five clicked links on this blog since its mid-April launch:
1. On noise, a judge who gets it, 2,646 views
2. Boom cars: the constitutionality of nose thumbing, 1,593 views
3. Boom cars and ATVs: cut from the same cloth, 157 views
4. Congress: make leisure time quiet time again, 141 views
5. “Ad loop” and “excitement” equal incongruence, 122 views
6. No-escape TV in 5 of 6 airports, 102 views
7. Knight Foundation errs on captive-audience news, 90 views
8. Outdoor video: what’s wrong with this picture?, 68 views
9. Serenos = serene: a definition mayors should know, 59 views
10. Captive-audience media: Charles Black was on the case, 50 views
Top five clicked links:
1. Malicious stereo ads
2. Kovacs v. Cooper (Supreme Court case involving audio truck)
3.Public Utilities Comm. v. Pollak (Supreme Court case involving captive-audience radio)
4. Algora Publishing (the publisher of our Noise Wars book)
5. Washington Post piece on checkout TV
Thank you to all the visitors who are helping to boost awareness of growing concerns over captive-audience media.
Free speech, yes; digital signs, no
Posted by R. Freedman in Audience captivity, Media noise on August 1st, 2009
Is it a violation of free speech rights to prohibit a billboard company from erecting a bunch of digital signs in a city? Lamar Advertising, the big outdoor ad company, says yes. Havelock, N.C., says no.
It doesn’t look like the First Amendment question will get answered because a July 30 news report on the billboard controversy says the two sides are trying to work out an agreement.
Lamar has bludgeoned municipalities with the First Amendment argument at least two times previously, in Los Angeles and Salem, Ore. We say “bludgeoned” because it’s not clear prohibiting billboards is a First Amendment violation. The U.S. Supreme Court has made clear restrictions on certain media to protect citizens against intrusions into their rights are consistent with the Constitution.
Exhibit A is a 1948 case, Kovacs vs. Cooper, we’ve talked about before in this blog. Trenton, N.J., enacted an ordinance prohibiting the broadcasting of “loud and raucous” messages from sound trucks. The Supreme Court upheld the city’s right to enforce its prohibition on the ground that the audio trucks violate residents’ right to privacy. Since residents aren’t given a chance to decide whether or not they want to consume the content, the audio trucks constitute a form of coercion, a violation of their privacy.
“The unwilling listener is not like the passer-by who may be offered a pamphlet in the street but cannot be made to take it,” the Court said in its ruling. “In his home or on the street, he is practically helpless to escape this interference with his privacy by loudspeakers except through the protection of the municipality.”
Digital signs are cut from the same cloth as sound trucks, even though the former involve video and the latter, audio. With their flashing light and incessant movement video images are virtually impossible to ignore and giant video images, which are what digital billboards serve up, constitute visual noise of the most brazen, coercive kind.
When we were researching Noise Wars: Compulsory Media and Our Loss of Autonomy, a book just released from Algora Publishing in New York City, we looked into battles in Los Angeles and Washington, D.C., over the introduction of giant digital screens in neighborhoods where residents complained about the flashing light and constant screen movement. The environment had become so polluted with visual noise that they couldn’t sleep in their own homes.
In any case, what Kovacs vs. Cooper tells us is that certain media can be restricted without violating the First Amendment, and that some restrictions are necessary to keep our world from collapsing into an uninhabitable circus environment, although they don’t quite use that terminology.
From a free-speech standpoint, it would be hard to find anyone more diehard about protecting that right than us. We believe everyone, including billboard companies, should be able to communicate what they want, even if people find the message offensive or outrageous. But that’s not the same thing as the freedom to turn people into a captive audience; people need to be free not to consume the message. The key is choice. And giant digital signs, which commandeer public space for a private purpose, are the antithesis of choice.
First-ever exclusive look at captive-audience media, from Algora Publishing
Captive-audience media: Charles Black was on the case
Posted by R. Freedman in Audience captivity, Media noise, TV Turnoff on July 16th, 2009
If there is one person I wouldn’t want to go up against in a court of law it’s Charles L. Black, Jr., the famed professor of constitutional law at Yale and Columbia University. In his heyday, during the 1950s, 60s, and 70s, his was one of the most prominent voices on desegregation (Brown vs. Board of Education) and presidential impeachment, and was widely regarded by his peers as one of the top constitutional authorities of his generation. Sadly, he was never appointed to the U.S. Supreme Court because, had he been, it’s very possible that captive-audience media, a cause de celebre in the view of this blog, would have been deemed a generation ago an unconstitutional abridgment of individual liberty, and we never would have had to launch this blog. Thus, all the time we devote to this blog could have been spent on much more bright and positive pursuits, such as talking about the good ways to offer information to people (there are such ways)—that is, ways that treat people with the respect and dignity they’re owed.
As it is, a divided Supreme Court in 1952 overturned a unanimous lower court and gave an okay to captive-audience media on a commuter rail in Washington, D.C. The end result of that decision is what we’re faced with today: TV on buses, trains, subways, taxis, elevators, street corners, bus stops, ad infinitum. Any place where people gather is now fair game for someone to impose TV or other intrusive media on whoever happens to be captive in that environment at that time. And make no mistake: the executives who operated the captive-audience media on that 1952 commuter rail totally understood what they were doing. One of the company executives described the service as “delivering a guaranteed audience . . . . If they can hear, they can hear your commercial.”
Of course, even the Supreme Court had some mixed feelings about audience captivity. Just a few years prior to that case it said it was okay for a city to ban the use of audio trucks for commercial purposes (trucks that drive around for the purpose of blaring out commercial messages to pedestrians. Such bans don’t represent an unconstitutional violation of free speech because it’s not the speech that’s being banned but the delivery mechanism. As the court clearly saw, allowing anybody with speakers on a truck to drive around pushing out whatever message they want turns people into captives because they have no opportunity to say no.
Why was audience captivity not okay in that case but okay in the commuter rail case? The difference turned on the idea of tacit permission. Since the train riders voluntarily took the rail service, they gave their tacit permission to be made captives to the commercial media.
To the judges who dissented in the case, that’s a pretty thin reed on which to draw a distinction. For some commuters, taking the rail is hardly a choice; it’s the only practical way for them to get in and out of town every day. Thus, as Justice William O. Douglas said, “Compulsion which comes from circumstances can be just as real as compulsion which comes from necessity.”
In any case, we are where we are in terms of captive-audience media. But as Charles Black made clear in what’s widely regarded as a classic essay on liberty, He Cannot Choose But Hear: The Plight of the Captive Auditor, which he wrote after the commuter-rail decision, the Supreme Court decision doesn’t mean we have to allow audience captivity. There are plenty of ways to fight it. Nothing in that decision affects our rights to appeal for curbs at the legislative, council, and commission levels of government, not to mention in the court of public opinion.
It’s in this spirit of appealing to the court of public opinion that Algora Publishing, a literary house in New York City, has just released our book Noise Wars: Compulsory Media and Our Loss of Autonomy.
The book looks at the growth of captive-audience media, the different forms it takes, why its poised to grow so much in the near future, and what the ranks of unhappy captives are doing about it. It ends with a look at ways to create environments in which both willing and unwilling audiences of captive-audience media can happily co-exist.
Ultimately it’s a positive book because it shows that many people are not sitting by idly while media companies blanket our common spaces with media that people can’t get away from. If you are a critic of captive-audience media, I hope you’ll support Algora Publishing and the effort to put captive-audience media in its place by buying the book. As the author, I would appreciate it too.
Take our survey
Is TV in public places good or bad? Let us know your thoughts in this Media by Choice survey on the good and the bad of TV in public places such as elevators, taxi cabs, subways, trains, buses, airport gates, doctor’s offices, office and hotel lobbies, and so on. Click here to take survey.
Boom cars: the constitutionality of nose thumbing
Posted by R. Freedman in Audience captivity, Media noise on June 10th, 2009
The boom car menace is one of those issues that gets attention for a while then falls off the radar screen. A recent bump in local TV and print coverage suggests that ultra loud car stereos with the thump-thump bass that make the ground vibrate are back on the radar screen, but surely it won’t be for long.
Local TV coverage in Slidell, La., last week focuses on the ineffectiveness of penalties at curbing boom car noise violations. The episode talks about the owner of a boom car who refuses to turn down his stereo even though he’s already paid $1,500 in fines over the years.
A boomer interviewed by the local TV station calls the focus on enforcing noise ordinances misguided because police should be devoting their resources to fighting violence. “They should be putting forth efforts to make the city safer,” the person said.
There’s unintended irony here. Making ultra loud noise is in fact a form of violence. The U.S. Department of Justice studied boom cars a few years ago and in its report talked about the subculture of antisocial behavior that underwrites it. The loud stereos seem to have little to do with music and a lot to do with dominance.
Noise Free America, a nonprofit advocacy group, calls boom cars a “gateway” crime because it leads to a breakdown in law and order: wherever you have a boom car problem you have a general crime problem.
For many years one anti-boom car activist in Norman, Oklahoma, maintained a Web site on which he posted online comments directed against him by boomers and the comments are, to put it mildly, violence turned into words. His Web site is down now, but it’s hard to forget the comments.
The custom car stereo industry for the last several years has been aware of boomers’ image problem and has been encouraging stereo manufacturers and others with a hand in the boom car culture to tone things down otherwise cities will start upgrading their noise restrictions to include outright boom car bans.
The image restructuring is sorely needed. Years ago, it was all the rage for stereo manufacturers to advertise their products as instruments of violence. You can see some of these ads for yourself at a database maintained by Noise Free America. The ads reach hard-to-believe heights in tastelessness. They make fun of people getting heart attacks from the loud noise or the rattling of the frail and elderly.
There have been several articles in the major daily media in recent years about the lack of empathy among people today. And, indeed, the empathy issue has been raised repeatedly in the context of the random violence at schools that we’ve seen. Well, the boom car ads are designed as a kind of celebration to a lack of empathy. Again, they are violence turned into words.
Of course, the car stereo industry has more than an image problem. Many recent studies are finding new links between cardiovascular health and other measures of well-being and the amount and kind of noise to which people are subjected. People literally are having heart attacks over noise. And the emotional stress of noise tears down people’s immune system, increasing their susceptibility to a host of problems.
Noise is one of those impossible-to-solve issues because one person’s noise is another person’s music. And one person’s nightmare is another person’s expression of freedom (although we would call it license, not freedom). For that reason, anyone who wades into any noise debate does so at the outset knowing of its futility. On the one hand people routinely say it’s the biggest quality of life issue in their apartment building or their neighborhood or their workplace, while on the other people routinely dismiss noise as the complaint of the namby-pamby set. We would guess that noise is among the most regulated yet least enforced civic rules on the books.
For that reason it might not be a bad idea for the U.S. Supreme Court to weigh in on the boom car issue. The court in the late 1940s considered a noise case that probably has a lot to say about today’s problem with boom cars. The case involved the broadcasting of commercial messages from a loud speaker attached to a truck. The driver drove around town broadcasting the audio content until the city council put a stop to it. The Supreme Court’s role was to rule whether the city ban constituted a violation of the constitutional right to free speech. The verdict: it wasn’t, because residents of the city had an equal right not to be bombarded with media from which they can’t escape—captive-audience media, in other words, which is the raison d’etre of this blog.
Everyone has a right to enjoy their music, no matter how much that music might offend others. But that right isn’t the same as a right to bludgeon others with it. When you bludgeon others with your media, it becomes a form of violence. And isn’t that what one of the boomers in the recent TV coverage want the police to focus on? It seems like the police are right to curb violence by curbing boom cars.
Intrusive ads have long, if not distinguished, history
Posted by R. Freedman in Audience captivity, Media noise on May 30th, 2009
The technology is more sophisticated today but the drive to force content onto people is the same as it’s ever been. Today we have out-of-home video that turns bus riders and grocery shoppers into a captive audience; in the 1930s we had cardboard cutouts of famous people with phonograph players behind them that barked sales pitches to passersby. Today we have “indoor billboards” (a euphemism for restroom ads) that use rear-projection to turn mirrors into ad screens; in the 1930s we had the same thing except advertisers left the restrooms alone and placed their phony mirrors in hotel and other lobbies.
These fun factoids are presented to us by Ad Lab, which took a look at issues of Modern Mechanix magazine from the 1930s to see what was happening in the world of advertising then.
It’s safe to say that, for as long as we’ve had advertising, we’ve had captive-audience advertising. Pushing your message out to people who haven’t asked for it and who can’t escape it without high opportunity cost to themselves is no doubt the Holy Grail of advertisers because it provides assurance that their message is reaching eyeballs or eardrums.
Because of its invasiveness, captive-audience media has always walked a fine line between what’s acceptable and what’s an invasion of people’s right to privacy and quiet. You can see this tightrope when you look at two U.S. Supreme Court decisions from the late 1940s and early 1950s that rule on captive-audience media. In the earlier case, the court sided with a city on outlawing audio trucks that push out content to pedestrians. Allowing anyone with a loudspeaker to drive around town, broadcasting content, sets up an untenable living environment, the court said.
But then, in the later case, the court sided with the operator of a commuter train that broadcast commercial radio to passengers. The court said passengers had given their tacit permission to be made subject to the content by riding the train voluntarily.
The latter case provoked sharp dissent, and among the points made in the dissent is that, for some riders, the commuter train is the only practical transportation into town, so to say passengers have given their tacit permission to be made captive to the content is disingenuous and certainly a narrow interpretation of the constitutional concept of liberty.
In any case, what we have today is increasingly sophisticated technology that makes captive-audience media too tempting to pass up for any company or organization that’s desperate to break through today’s media noise and get their message heard. Thus, what was once novel—talking cut-outs and rear-projection mirrors—is now becoming all too familiar as we sit through commercials at the movie theater and have audio and video content pushed out at us at the checkout line at stores, in the lobbies of offices and hotels, on street corners, and in every form of public transit.
Thanks to a post by Digital Signage News writer Bill Gerba for publicizing the Ad Lab piece.
“Pull” media can’t compete with “push” media
Posted by R. Freedman in Audience captivity, Media noise on May 22nd, 2009
How do you quantify the death of print media? One way is to use data just released from the Newspaper Association of America that newspapers lost more than $18 billion in the last three years.
The easy explanation for all this red ink is that newspapers got the Internet wrong. But there’s another way to look at it. Print media in general and newspapers in particular are looking like the last remnants of what we might call “pull” media. These are media that depend on their ability to pull in their audience with compelling content. If they can’t pull in audiences, advertisers go elsewhere, their bottom line goes south, and they go into a death spiral.
Captive-audience media companies, by contrast, are actually growing during these very difficult economic times. Indeed, companies operating in this media are experiencing the opposite of a death spiral; they’re in a virtuous cycle of revenue growth that leads to platform growth that leads to more revenue growth.
Why the difference in economic fortunes of these two types of media?
The easy answer is that captive-audience media is largely screen and audio media. In a world in which people are giving up the reading habit, screen and audio media is the preferred media choice because it places little demand on its audience.
But this explanation might be too simplistic. After all, network television, the grandfather of screen and audio media, is having its own troubles. Although it’s holding its own in the revenue wars, it’s no longer king of the mountain.
Rather, the explanation might lay in the fact that captive-audience media is “push” media, the very opposite of the “pull” quality of newspapers and other types of traditional print media.
“Push” media doesn’t need to pull in its audience with compelling content. By its very nature it pushes its content out to an audience whether that audience wants it or not. Its advertisers are thus assured of reaching a certain number of eyeballs.
This is a great situation for the media companies and for the advertisers. But what about the audience?
To be sure, captive-audience companies release poll after poll showing how much people like to be entertained while they’re out and about: filling their tank with gas, waiting to buy groceries, riding in a train, waiting at a bus stop, riding in an elevator. Thus, TVs in these settings are a net plus.
In a sense, captive-audience companies must have something that looks like authoritative research to support what they’re doing because if most people took offense at being force fed media, than advertisers would pull out because what advertiser wants to risk its brand equity by intruding on people?
That’s what happened to Channel One, the commercial in-school compulsory TV network. The company is still around and is even gearing up for a big push on a Web TV series it’s developing, but a few years ago the company was struggling and had to find a new owner because parents and organizations such as Commercial Alert succeeded in shaming advertisers into pulling their support for the company on the grounds that it’s wrong to force children, in a legally mandated public school setting, to watch commercial TV.
But an argument can be made that captive-audience companies are using their polls as a Trojan horse and that the entertainment element to their content serves much the same purpose as mosquito “anesthetic.”
The way a mosquito operates is by injecting its hosts with an anesthetic-like compound just before it sucks blood. It’s because of the anesthetic-like effect of the compound that in so many cases we don’t know we were bit until after the mosquito has already had its meal.
Captive-audience media works in the same way. As an uninvited guest, it needs to preempt any offense we might take by numbing us with entertainment. With the host sufficiently softened up, the path is paved for the advertiser.
In a world in which captive-audience media is rare, it’s hardly worth taking offense at this. Both the entertainment and the advertising are inoffensive. The intrusion is minimal.
That’s why the U.S. Supreme Court in 1952 decided a captive-audience case in favor of the captors rather than the captives. The case involved piped-in commercial radio on a commuter train. The court ruled that most people didn’t mind and that by voluntarily riding the bus people gave their tacit consent.
The case wasn’t without controversy and two justices took grave issue with the decision.
But it’s worth asking whether people would be so quick to give a thumb’s up to being made captive to unwanted media if the question wasn’t whether they liked the TVs on the gas pumps or in the grocery store, but whether they wanted to live in a world in which much of the places they conduct the business of their lives is characterized by captive-audience media.
Asking a pedestrian whether one person’s second-hand smoke is bothering her is different than asking her if she’d like to live in a world in which much of the environment in which she spends her time is characterized by second-hand smoke.
The possibility of open-ended captive-audience media was clearly on the minds of the Supreme Court a few years before the commuter-train case when it voted against the captors and in favor of the captives in a case involving an audio truck. The court looked at whether a town was within its rights to prohibit a man from blasting a message from a loudspeaker on his truck while he drove around.
Here the court made clear that allowing such a practice could lead to intolerable living conditions for people, because the door would be open for anyone to drive around and impose one’s content on people without their permission.
“Unrestrained use throughout a municipality of all sound amplifying devices would be intolerable,” the court said. “The unwilling listener is not like the passer-by who may be offered a pamphlet in the street but cannot be made to take it. In his home or on the street, he is practically helpless to escape this interference with his privacy by loudspeakers.”
Clearly, private businesses are free to hold their customers captive to unasked-for media if they want.
But with captive-audience media on the front end of a growth cycle and traditional “pull” media in the opening throes of a death spiral, it’s clear we’re staring into a future in which more of our places will be characterized by captive-audience media. “Pull” media cannot compete with that, so we can expect traditional media providers, as a survival tactic, to take on more of the characteristics of their “push” media competitors.
At some point, no amount of numbing by entertainment will be able to disguise the fact that the horse is within the gate, its door open, and our firewall breached.
