Yesterday my husband was off work on a snow day, and one of the activities we did together was watch a webinar on winter birding. There were questions at the end about how to make sure our backyard birds are taken care of during the current harsh winter weather.
In my garden are a lot standing plants with seed heads that are still pretty full, so backyard birds that can eat those kinds of seeds can always get food. There is a pond heater that I bought from Schnarr’s Hardware, where I work part time, that keeps a melted hole open in the surface ice of our pond as long as I periodically remove the layer of drifting snow, so our birds have a steady supply of water too. What we were reminded of in the webinar is that all birds can’t eat all varieties of seed, and some birds who depend more on fruit and insects may be going hungry right now. As emergency help, I hastily prepared a couple of bowls of extra food – some sliced oranges, chopped apples, peanut butter, jelly, cat food and a little extra seed. As extra protection against the food getting covered up with snow, you can put such bowls under a shelter of some kind, or in a feeder that has a cover. At Schnarr’s we also sell dried mealworms and suet cakes and feeders, which most birds love and are especially beneficial for heavy insect-eating birds that need protein.
Eastern Bluebirds, the Missouri State Bird, are an example of a heavy insect-eating species that needs a lot of protein. In the suburbs where I live, it’s not easy to get this sought after but not very common bird into a backyard to view because they are highly impacted by habitat and food loss from human altered landscapes. However, I saw one in our neighborhood a few weeks ago so I’m happy to know there is some good habitat in the vicinity. There is a large cemetery nearby which probably helps a great deal.
Here are links to other articles I’ve written that might help you enjoy your backyard birds:
A SWOT Analysis is a Strength, Weakness, Opportunity, and Threat Analysis. Here I am using an outline partly based on an unpublished paper I wrote for Marketing 5000 class last spring to create a SWOT analysis for the #12daysoftomsbeard project. My unpublished paper, titled “(Name of Fantasy Company) Marketing Plan” was based on an assignment and outline given to us by Webster University professor Dr. John Jinkner.
I’m going to publish a small portion at a time, because it will take some time to write. I hope you enjoy it!
I. Executive Summary
#12daysoftomsbeard is a conceptual art project engaged in by Carolyn (Me) and Tom Winkelmann as part of our annual Christmas tradition. This is a young tradition for us, having been recently practiced for only the second year in a row.
The activity was inspired by several things. I have a long history of engaging in conceptual art through Mail Art, the ‘zine scene, and various art experiments involving photography, handmade books, ephemeral art installations, Pop Art, Dadaism, and more. There are two definitions of conceptual art in an interesting article I found, “If You Don’t Understand Conceptual Art, It’s Not Your Fault”. One definition, the one I gave to my husband off the top of my head while I explained why I wanted to take pictures of him with things in his beard, is that conceptual art is a form of art where the idea is the art and the tangible object created is not considered important. The other definition in the article is that conceptual art is a set of plans or strategies (Kaplan).
Tom has been letting his beard grow more often and is frequently teased about his beard by his family. Last year I decided it would be fun to turn the teasing into humor and art so I showed up at Christmas Day celebrations with colorful paper circles and squares with a few collage elements on them and writing implements for family members to color and draw on to put in Tom’s beard to take pictures of. The idea for hanging paper or art items from a beard is not original with me, there are people who use their beards as mini art galleries and vehicles for Christmas decorations.
I invited family members, many who I know like to paint and color, to use pens and markers to add to the paper pieces, which I then clipped to Tom’s beard with mini clothespins. Then I took photos for Instagram and posted one each day for 12 days, with the hashtag #12daysoftomsbeard. The idea for hanging paper or art items from a beard is not original with me, there are people who use their beards as mini art galleries and vehicles for Christmas decorations.
Since I like to art journal as a creative development and self-care activity, when I was done taking pictures of the paper pieces in Tom’s beard, I mounted them on art journal pages, some of which I planned to exhibit in the then upcoming art show, Back To Our Roots which opened in February 2020 at the historic Arcade building in downtown St. Louis.
II. Environmental Analysis
There were several parts to the #12daysoftomsbeard project as executed in the 2020-21 holiday season. Since I was anticipating only distance Christmas activities due to the pandemic, I decided to send out tags and invite people to alter them and send them back to take picture of in Tom’s beard.
1. I made a black and white version of collages that Tom and I made together to use in our Christmas cards, then had copies printed out on white cardstock. I traced shapes from Christmas cookie cutters onto the back of the cardstock and cut out shaped tags. I made stickers for the backs of the tags that explained the project and featured a QR code so that people could easily check the results of the #12daysoftomsbeard Instagram feed with smartphones if they wanted to.
2. I put tags in most of the Christmas cards we sent out. I also included in many of cards some scrap paper pieces and examples of faux postage that Tom and I made to use in Christmas artwork, for people who might want to join in but don’t have a ready supply of art materials around. Some of the paper scraps were examples of Christmas faux postage that I’ve made on my own and with my husband so if people didn’t end up using them in the project they might want them for some other craft or just something to look at as part of a Christmas greeting. For a few of the people that we hand-delivered cards and gifts to, we punched a hole at the top of a tag, attached a loop of cord for hanging, and put one on their doorknob.
3. I made a graphic to use as a social media header that included the QR code and images from last year’s beard series to raise anticipation and awareness. I also wanted to cheer people up with some bright colors since I knew a lot of people who were feeling sadness over separation from loved ones and the loss of loved ones during the holidays. I know from personal experience that the holidays and winter are often difficult for many people even in more typical years depending on their current situation in life.
4. To help people get started sooner if they were eager, since we weren’t as early as I would have liked getting our cards mailed, I made graphic that people could download and print out that had tag templates on it, instructions and the QR code.
I posted the template graphic in social media for download, and mailed and emailed a few copies to people I thought might be particularly interested.
5. In keeping with the theme of bright rainbow colors I had started, I prepared 12 little collages made from colorful upcycled hardware store paint sample cards so that I would have something to put in Tom’s beard if no one sent me any art pieces to use. On some days I made extra items to fit the color theme of the day and also incorporated found objects if I was inspired. For example, those two guys in the right picture above were cut out from a piece of junk mail. Some of the paper pieces there were parts from older Christmas card designs.
6. When taking the pictures, I had a lot of fun experimenting with different eyeglasses on Tom and taping things to the lenses of my clear protective goggles to make crazy compositions. I installed some new photo filters on my smartphone to make the pictures even more fun and colorful before I posted them to Instagram.
7. Tom and I were feeling lonely over the holidays and thought that since we were staying home, it might be fun to have a New Year’s Eve themed #virtualartparty, an ongoing series of online meetings I started when the pandemic began, with the purpose of cheering people up who were missing out on their usual social activities.
We ended up cancelling the New Year’s Eve edition of #virtualartpary because our cat Griffin was terribly ill that day and we were sure we were going to lose her. Griffin has been with my husband for 21 years and Tom needed my support and attention so he could be with Griffin, and I thought we were going to be dealing with grief on New Year’s Eve and not in the mood for a party. But to our grateful surprise, Griffin recovered and is doing very well now. At her age we know she won’t be around that much longer, but we aren’t eager to lose her any earlier than we have to.
I had been planning to talk about #12daysoftomsbeard on December 31 as part of the #virtualartparty, the timing made sense since I was taking a daily photo from December 25 through January 6. I made some sequential social media header graphics with colorful beard pictures and the hash tag #virtualartparty to help build interest. I didn’t have time to make a header graphic for each of the 12 days, but maybe next year I should.
A. The Marketing Environment
Even though #12daysoftomsbeard is not a commercial activity, we do need to market the project in order to persuade people to participate.
1. Competitive forces. Other sources of entertainment, amusement or hobby activities are the main competition for the attention and time that potential participants might allow for just understanding what our #12daysoftomsbeard project is, much less time to participate. With the amount of time that people spend in front of a screen or with a smart device in their hand, it is difficult to get anyone’s attention away from anything that isn’t corporate in origin. As Dr. Jim Taylor lamented in an article for Psychology Today, the nations of the former Soviet Union, Italy, Spain, Germany and nations conquered by the NAZIs, Cuba and North Korea have experienced decades of suffering because aspects of their authentic culture were abusively removed and replaced with a synthesized totalitarian culture (Taylor, “Popular Culture: We…”). I would add China and the United States to that list also. Dr. Taylor’s article reminds us why there are so many organizations throughout the world dedicated to cultural heritage and cultural preservation. I quote Dr. Taylor in this excerpt:
“As individuals, a genuine popular culture instills a sense of ownership and empowerment in our society because each of us knows that we contribute to that culture. We are more likely to act in our society’s best interests because we know that those best interests are also our own. An authentic popular culture also gives us a sense of shared identity, meaning, and purpose that transcends differences in geography, race, ethnicity, religion, or politics. All of these then encourage us to lead a life in accordance with our culture’s values and norms because they are our own (Taylor, ‘Popular Culture: We…’)”
In other words, if we throw away our authentic culture for synthesized corporate culture we should not have to wonder why so many of our citizens have been programmed to serve the interests of large corporations so thoroughly that they are literally waging war on their behalf with people that they formerly were able to co-exist with. Many people trust screens far more than they trust friends, neighbors and even family members that they have known for decades. The manner in which many people experience the world is corporate-based with life beyond a screen regarded as if it is fiction. They allow corporations to tell them what the world outside is like instead of going out and finding out for themselves. People are told that their own judgement is not to be trusted and they need corporate “fact-checkers” to tell them what is ok to read or hear about. I overheard art teachers as far back as the 1980s trying to urge some of my fellow art students to use their own authentic experiences and senses of self to create art instead of just drawing corporate cartoon characters and corporate based entertainment characters and content. I know so many people, who if you removed corporate consumer culture from the topics they could talk or think about, there would be almost nothing there. Teaching art or trying to market an art activity without corporate branding attached to it is inherently very difficult. We know that children can’t distinguish advertising from entertainment, that is widely acknowledged, but I don’t know many people who admit that a lot of adults can’t either. Most people I know aren’t aware that when they are entertained they are actually being marketed to and they are not the customer for the entertainment – the advertisers are the actual customer.
The #12daysoftomsbeard project is not completely devoid of corporate content because it includes found objects and some clothing with logos. However, by basing it on the universal human experience of personal grooming and running it from December 25 to the Feast of the Epiphany (the day we Catholics observe it, my understanding is it varies depending on tradition), I intended to bring attention to authentic human and authentic Christian culture and away from the corporate way of celebrating Christmas for just a little while, just to give Tom and I and others a break and a reason to look at each other while really seeing and interacting each other. What would my slightly weird Christmas cards look like next to other cards designed by corporations? What do people think when they see the resulting pictures? What did they think about while making an art piece to send back?
Kaplan, Isaac. “f You Don’t Understand Conceptual Art, It’s Not Your Fault.” Artsy, 2016, www.artsy.net/article/artsy-editorial-if-you-don-t-understand-conceptual-art-it-s-not-your-fault. Accessed 22 January 2021.
Mitchell, Grant. “Strength, Weakness, Opportunity, and Threat (SWOT) Analysis.” Dotdash, 2020, https://www.investopedia.com/terms/s/swot.asp. Accessed 15 January 2020.
Taylor, Dr. Jim. “Popular Culture: Too Much Time On Our Hands.” Psychology Today, 2009, www.psychologytoday.com/us/blog/the-power-prime/200909/popular-culture-too-much-time-our-hands. Accessed 15 December 2020.
—. “Popular Culture: We Are What We Consume.” Psychology Today, 2009, www.psychologytoday.com/us/blog/the-power-prime/200912/popular-culture-we-are-what-we-consume. Accessed 15 December 2020.
Pulling Your Own Strings is a book by the late Dr. Wayne Dyer that I’m re-reading right now for the umpteenth time. My copy is so battered the front cover is gone. I’m going to re-read a little each morning to help get the day started in a productive frame of mind. It’s been too long since I last picked this book up, so I’m going to remedy that by re-reading and quoting from it frequently. It would get tiresome to keep doing that on this blog, so after this post I think I’ll use my new MeWe account if I feel moved to quote and comment. I learn better when I analyze and write about what I read. Some things are hard enough to achieve in real life that I have to re-learn them many times over.
I read three of Dr. Dyer’s books in the late 1980s and early 1990s. I knew he had become somewhat of a TV personality after that but since I’m skeptical about what is on TV I stopped being interested in his work, so I can’t analyze what he did after the first three books I read. But one thing I do know – after re-reading parts of Pulling Your Own Strings while writing a recent research paper I realized whatever turn his career took after I read these books, I need more than ever to master this material. I have a lot of life experience since I first read this book, and have read many many many more books, including quite a few on the topics of mental health and psychology. In my opinion this book not only stands the test of time but is even more relevant now than when it was written – I think the obstacles against being a free-thinker have grown in the intervening years rather than lessened.
It’s easy to get discouraged when you get blowback as a result of asserting your rights in personal life, business life or public life. Abusers, mostly called victimizers in this book, will try to convince you that you are wrong for asserting your own agency. They want you to think it’s because they are more worthy than you, more moral or superior in some way and you are the one who is wrong. In many cases, the only thing you are doing “wrong” is being in the way of their agenda. You have the right to set your own agenda. You are not obligated to go along with someone else’s agenda unless you choose to freely. I admit to being afraid of the consequences sometimes. If you call someone’s bluff, they often will back down but sometimes they attack and do damage. But the price of not asserting your rights is also very high. To put things in perspective, when we got our stimulus checks last summer there was a lot of discussion about how to spend them and I was interested in asking what people did with them to get an idea about their priorities and values. A portion of mine went to help free a family from slavery in a brickyard in Pakistan. I got to see pictures of the family on their liberation day. When I think about it, it’s a reminder that although the cost of standing up for your rights may be very high, the cost of not doing so could be much higher.
Here is today’s quote, excerpts from page xiv:
“… I believe that you must often be assertive, even pugnacious, to avoid being victimized.
Yes I do think you must often be unreasonable, “insubordinate,” to people who would manipulate you. To be otherwise is to be victimized, and the world is full of people who would love you to behave in whatever ways are most convenient for them.
…individuals have the right to decide how they will live their lives, and that as long as their exercise of this right does not infringe on the equal rights of others, any person or institution that interferes ought to be viewed as a victimizer.” – Dr. Wayne Dyer
Many of the institutions I’m entangled with for marketing purposes have become blatant victimizers. Many of my business plans for this year are going to have to be changed and I will probably suffer some financially by getting off to a sluggish start as I focus on slowly disentangling myself. I was looking forward to starting off the year with some topics that were more fun than the classes I took last fall, but some of that time I have to devote to more pragmatic concerns – I’d much rather write about fun creative projects. I’m going to be spending some time working on breaking some of the chains I was manipulated into affixing to myself. I don’t know all the answers, especially since the situation is fluid and any internet-based tool at my disposal can be shut down at any time without warning and without recourse, but whatever I’m able to learn while doing so I’ll try to share with my readers. I’m over the halfway point of a Masters Degree in Advertising and Marketing Communications (excluding electives). The amount of knowledge I’ve taken in during that time I liken to seeing the world in black and white then having it switch to color. Imagine what is still coming! It’s as exciting as it is scary – some of it will be contrary to the agenda of very powerful corporations and government institutions, hidden or manifest, but of course not to the Constitution (as now written) or the rights of others. I’m not going to be manipulated into violating my ethics because my soul would be a loss to me greater than any other.
Dr. Dyer said on page xiv that Pulling Your Own Strings is written for people “who want their own freedom more desperately than anything else”. Unfortunately that’s how I was made and this time in history is going to be trying in ways I probably still don’t fully comprehend. My husband is united with me in our philosophy about freedom and since he is the only human person I’m accountable to by way of sacred vows or oaths, we are ready!
I’ve always believed in platform diversity to avoid economic damage and economic coercion. Have I been as vigilant as I needed to be? Doesn’t look like it. Now the stakes seem a lot higher than that even! I’m signing up for the social media and other platforms people I know are recommending. I don’t know how many it will be and how many will be able to stay in operation and how many I will want to stay on. When the dust settles a little I will probably add some logos to my contact page that lead to different platforms and update my profiles. Right now my priority is to get accounts to see which ones stay usable.
It’s supposed to be illegal in the United States for businesses to punish you for doing business with competitors. So let’s test it, shall we?
I don’t have time to write a lot now, but a good starting point is here:
Through my Master Gardener work at Litzinger Road Ecology Center, a project of Missouri Botanical Garden, I’m a member of a book club for volunteers. Since we have not been doing volunteer work or educational enrichment in person lately, our book club helps to keep us in touch with each other through online meetings and keeps our minds expanding.
I haven’t had much time lately to read anything except textbooks and write anything except papers since I am in graduate school, though so far I’ve been able to fit in book club readings and discussions. For the next two and half months or so I’m going to be working on some independent study which should result in a little more time to read and write about more varied topics. One of my favorite things to write is book reviews! The first three books I’m going to review here are recent readings from our book club, and the last one is an old book that I read a long time ago and used for my most recent paper, resulting in a refreshed perspective on it and renewed appreciation.
“Never Home Alone” by Rob Dunn
There are many organisms that we live with but don’t think much about. In some cases, they are small to begin with, and are secretive or live in parts of our homes that we don’t regularly access. Others are too tiny to be seen without scientific equipment. The study of these types of organisms is a much younger field of science compared to that of the larger organisms that humans have been able to easily access for millenia. This book explains how human curiosity started to unlock some of this secret world that goes on around us, and even in and on us. You’ll also learn about exciting recent discoveries and areas that are unexplored and ripe for new studies. If you know someone who is interested in science this book might help turn them on to a field that is both relatively new and potentially very important to the human condition.
We live in a time when we are encouraged to have unwavering faith in a technocracy and questioning anything scientists or members of the technocracy say is treated by mainstream culture as heresy. In addition to being fascinating subject matter in it’s own right, this book is a good reminder to lay people such as myself that scientists are not superhuman, they don’t know everything and no one is above being questioned. Here is a quote I like from page 214: “Scientists aren’t supposed to discount hypotheses that they find boring and unfortunate, but they do…” I think we should all be cautious if someone tells us everything that can be known about something is already known. We can all think of many instances in history where that has been asserted, incorrectly. I believe curiosity should be encouraged whenever possible and this book certainly appeals to that part of human nature!
“The Incredible Journey of Plants” by Stefano Mancuso
Similar to our first book club selection above, “The Incredible Journey of Plants” is a science book written so that a lay audience can access the information without having to read academic papers. It’s shorter in length than “Never Home Alone” and the watercolor illustrations are artistic and fanciful rather than strictly informational. Although the illustrations are lovely, in my opinion they would have benefitted from more variety in concepts since they are very prominent in the overall presentation.
If you enjoy plants, learning more about how amazing their survival, propagation and adaptation capabilities are from this book is likely to increase your fascination. The author provides some global perspective to the importance of plants to humans and the interplay between plants and world history. Although it contains scientific information, this is a book that you would probably use most often to access your capability for inspiration and wonder rather than as a horticultural reference book.
“Things in Jars” by Jess Kidd
“Things in Jars” is detective fiction that is set in the Victorian era. That might sound like a conventional premise, but this author adds in supernatural and fantasy elements with a poetic approach to the language creating results that are very bizarre, in a good way. This is not a “cozy” mystery with genteel characters and situations. There is considerable gore and dark abuse reflecting the hardships of the Victorian era that went along with the whimsy, mannered culture and scientific progress of the time that we often see portrayed in fiction. The “Things In Jars” of the title are sought after by scientists, collectors, curiosity exhibitors, mercenaries and detectives who all have conflicting purposes in mind for the specimens in question.
Although I have read a great deal of detective fiction, fantasy is not one of my favorite genres so at first I had a hard time getting interested in the story which has as characters ghosts and mythical creatures along with examples of Victorian era denizens that are more grounded in reality even if they are flamboyantly exaggerated. There are a lot of flashbacks and a lot of characters with similarities to each other, so I found the story to be occasionally confusing. I can think of two or three categories of players that could have been streamlined to make the story easier to follow. Despite that, if this author wanted to use the lead characters and situations to make a detective series out of this novel, I would be interested in reading more. It took considerable mental effort on my part to get into this world, but once there I was in no hurry to get back out. For example I could spend a lot more time with an eccentric scientist in a laboratory at the top of a converted windmill with a pet raven – lets go back there please! That’s one of my favorite aspects of a detective series, you don’t have to get used to a whole new world each time you read an installment.
“Pulling Your Own Strings” by Dr. Wayne Dyer
This book was first published in 1978. I first read this book in the late 1980s, when I was in college (the first time). It turned out to be one of the most influential books I have ever read. At many points in all of our lives, individuals and institutions are going to try to get you to disregard your own inclinations in behavior and thought so that your actions will benefit them, rather than yourself.
In my most recent research paper for the class Media Organization Regulations, I explained some of the sources of my theory that abuse is so mainstream in our society that we often don’t recognize when it’s happening. I got out my old copy of “Pulling Your Own Strings” to use in the paper because I remembered there were examples of the kinds of tactics I wanted to write about in the book, both personal and societal, and I wanted to make the patterns easy to recognize and understand. My jaw actually fell open re-reading parts of this book because the ideas contained within it are just as important now as in the 1970s, if not even more so. It seems from my point of view that individualism and thinking for oneself are less popular in our culture than they have ever been and we are shamed if we claim our right to question what we are told and why. This book reminds me that when people, institutions and society treat you that way it’s because they want something from you and it’s not likely to be what is in your best interests. I have read this book so many times the cover fell off some time ago, but it’s been a long while since the last reading – way too long. It’s going to go back to a spot where I can refer to it frequently. The dominant culture is working hard to separate all of us from our sources of strength to conform to their vision of how we should live – this book affirms the rights of all human beings to mentally reclaim our own agency and helps us practice building the courage we’ll need to do it.
This year I made two Christmas card designs. This first version started out as a mixed media art journal page. I scanned it and used Photoshop to add background shapes, manipulate colors and to add details. I started it two years ago, and got it out again last year, but I just didn’t get it to where I wanted it until the third try. I added in some of the faux postage designs Tom and I made a few weeks ago and that was finally the finishing touch it needed!
As often happens, while scanning in and manipulating the faux postage designs to use as accents, I got another idea and was in the mood for some brighter colors so I made another card design. I had both cards printed and sent one design to half the Christmas card list and the other to the remainder.
Besides the digital manipulation, the art and craft media and techniques that went into this card design consist of the following: rubber stamps, hole punches, collage, stickers, design tape (washi tape), and image transfers.
The picture on the left shows how a lot of our Christmas cards went out. We each made two sheets of faux postage. Tom didn’t care about having color copies made of his or displaying them as full sheets, so I scanned his two faux postage sheets to make black and white versions for coloring. Last year we were able to invite family members to help color in and draw on paper items for Tom’s beard in person but this year we are not doing gatherings in person so we are encouraging people to mail things in for Tom’s beard. We made the black and white shaped tags to give people something to color on in case they are stuck for an idea.
For those who got a little envelope of paper bits, those are for designing and collaging with if you choose, or you can just enjoy them in different paper projects if you have any. I made a Pinterest board on which I collect ideas for things to make with scraps. Scraps and paper ephemera are endlessly inspiring to me.
Tom is a good sport and is having fun thinking of places to take the photos each day and also helping pick out filters. I downloaded a couple of new phone apps that have some crazy filters in them and I’m enjoying using them to help make an art statement.
Here are the results for Day 1. I added a hint of a grunge frame, the hashtag in text and a border in Photoshop after sharing it on a couple of social media sites first. As I get used to how the sharing process works with the new filter apps I’m trying out, this part should run more smoothly.
#12dayoftomsbeard lasts until January 6, so there is still plenty of time if you want to send something in! Some people probably don’t even have their greeting cards yet since I was a bit late getting them out due to school. I’m used to having to throw together holiday themed promotions at the last minute because often when working for a company or clients we would not have much time available to plan so we’d have to wait until client work slowed down right before Christmas to even start. It was and is frustrating to have to hurry through the planning and execution because we could have been so much more effective with more strategy and care. It was good practice for doing things fast though – I had to work fast once again this year because I’m in graduate school and there is very little time between the end of class and Christmas to work with. I don’t have much time to make gifts so a little fun activity and putting some extra work into the cards is the best I can do. I’m having fun with it – I hope other people do too!
I turned in my final paper for Media Organization Regulations last night. It was already a lot longer than it needed to be for the assignment, but I would have kept writing more if I had more time, right or wrong!
I am not an attorney or law student. Edit 12-22-20 – I found and fixed a couple of typo-type errors in the Works Cited section.
After seeing my grade, I did ok on this paper but I didn’t do great. I want it to be great. My professor left me some comments about things she thinks I should have included. It is possible that I will publish a revised version of this paper incorporating the professor’s suggestions. When/if I do that I will have to double-check how to give proper credit for that sort of thing in an academic paper in the MLA format because I’m being trained in academic writing and academic integrity as I go as well as in course material. Before starting this degree in 2019 I hadn’t written an academic paper since 1993. What you will read below is unedited from when I submitted it except for two typos in the credits section. When/if I revise it further I’ll make that clear in the proper format.
At the end I have links to sources, and after that links to other posts on this blog that are on related topics in case you think the subject is interesting and want to read more. I’ll also link to the Pinterest board I use to help collect and organize sources I might use. Enjoy!
Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
20 December 2020
Can Laws Protect The Public From The Media?
Physical abuse of women in history has been mostly allowed to go on without consistent punishment until the 1990s. Hundreds of years of beliefs that abuse victims deserve it, that the perpetrators who are punished are the real victims, or that abuse victims must be lying will likely take generations to diffuse because they were validated by hundreds of years of attitudes as well as the lack of prohibitive laws. Another obstacle abuse victims have to face is a lack of enforcement even when there were applicable laws on the books (Bancroft 321).
In our culture, physical violence against domestic partners is slowly becoming less acceptable. It is not as common as it used to be for family members, neighbors, or bystanders to look the other way when they witness abuse. Some schools even teach children that they are entitled to safety from family members in their home instead of only strangers outside of it when they are teaching them how to call 911 for help (Bancroft 293).
Even though emotional and economic abuse can inflict severe harm, there are not as many legal preventive measures or remedies available for mental abuse as there are for physical violence (Bancroft 293). It is difficult to promote awareness of the seriousness of emotional abuse when physical abuse has only been taken seriously in very recent history (Bancroft 321).
Negligent infliction of emotional distress, or NIED, is a tort that can be used in a suit against someone who carelessly caused emotional harm to another person (Trager et al 184). A plaintiff hoping to win such a suit must be able to prove the following facts (Trager et al 184):
The defendant had a duty to use due care in interactions with the plaintiff.
The defendant acted negligently while failing to use due care.
The plaintiff has suffered injury.
The injury can be proven to be caused by the plaintiff’s negligent actions.
Attempts have been made to bring NIED lawsuits against the media as well as individual abusers, but they usually are not successful (Trager et al 185). It is difficult for the plaintiff to prove proximate cause, that is, a reasonable finding that the defendant’s actions were directly to blame for the plaintiff’s injury (Trager et al 184). It is theoretically much easier to prove that a media plaintiff was negligent because there are ample studies showing how media members should behave if they care about the public’s well-being, but negligence alone is not enough to win a suit (Trager et al 184-185).
If the behavior of the media defendant is so outrageous that “a civilized society” would consider it “intolerable and beyond all bounds of decency” then the potential tort might rise to the level of intentional infliction of emotional distress, or IIED (Trager et al 179). The plaintiff must still prove direct causation (Trager et al 179). In addition, if the plaintiff is a public figure, the defendant must be proven to have acted with actual malice, that is “publishing with knowledge of falsity or a reckless disregard for the truth” (Trager et al 181). Even actual malice is sometimes not actionable if the courts interpret the defendant’s actions as satire or parody, or if the subject of the offending speech is about a matter of “public concern” (Trager et al 184).
One reason the media has so much latitude is because the founders of our country considered a free press and freedom of speech to be so important that they specified those rights in the First Amendment (Baran and Davis 30). When members of the media are criticized for having harmful effects on our culture, they argue that they are not that influential, that they reflect society but don’t have the power to shape it. At the same time, the media tells advertisers they can give them a good return on their investment and if an organization is of any significant size, be it government, nonprofit, or business, they spend money and resources on maintaining a public relations department (Baran and Davis 30). A belief that media IS very influential is apparently coming from somewhere.
There has been disagreement among theorists, academics, government officials, media companies and the public about how legally free from restraint the media should be ever since there was such a thing as media (Baran and Davis 62-63). The idea of technocratic control was considered and debated in the United States but ultimately rejected, at least if it was framed as control by the government. Technocratic control is “direct regulation of the media” by technocrats, people considered to possess the correct values and skills to regulate media for the welfare of the public (Baran and Davis 62). One of the reasons government technocratic control was rejected in the United States in the 20th century was because there was no consensus on who was qualified to have that power (Baran and Davis 62-63). Regulations that applied in certain situations that passed First Amendment tests have been enacted over the years and are sometimes thrown out by the courts when re-tested. The limits are renegotiated constantly from both the direction of greater freedom and the direction of more control (Baran and Davis 63).
Part of my incentive in choosing in this paper to examine parallels between domestic abusers and media abusers is the observation that both groups have the characteristic of constantly testing limits, like predators looking for weaknesses and loopholes to see what their targets and society will let them get away with. Awareness and legislation often lag behind the latest technological developments and technocracy strategies. Another reason is that abusers and media utilize many of the same manipulative techniques. Does the media share some of the same motivations as domestic abusers? Neither group can be trusted to be forthcoming about their intentions because of course they are more effective when their tactics are opaque – one can only judge by observing patterns of behavior.
There is another parallel between domestic abuse and media behavior that could be examined from a regulatory perspective. In considering the pattern of legal intervention in abuse, physical harm was an obvious effect of abuse to be considered worthy of attention by the law. When consumer products began to be subject to regulation in the United States, the danger of physical harm to the public was also an issue addressed early on.
Consumer protection laws began to be enacted in some US states as early as the mid-1800s to protect the public from adulterated food and drugs (Pride and Ferrell 78). The federal Food and Drug Administration (FDA) was created to assume responsibility, formerly handled by the Department of Agriculture, for testing agricultural products (“The History of FDA’s…”). The 1906 Pure Food and Drugs Act was a continuation this public safety work as the regulatory body evolved into what we know as the FDA by the 1930s (“The History of FDA’s…”). There was a further push for increased legislation designed to reduce physical harm from products, their advertising, and labeling in the 1960s and 1970s (Pride and Ferrell 78). Today there are several additional federal agencies created to help protect consumers. Some of the major ones are the Federal Trade Commission (FTC), the Consumer Product Safety Commission (CPSC), the Federal Communications Commission (FCC), and the Environmental Protection Agency (EPA) (Pride and Ferrell 80).
Ideas are also products – they can be sold using a lot of the same strategies as tangible goods. By the 1930s, the notion of regulating harmful ideas was part of the discussion and remains so to the present day (Baran and Davis 68). An influential compendium of the state of scholarship on media effects, The Effects of Mass Communications, was published by Joseph Klapper in 1960. Klapper’s opinion was that media was more of a reinforcer than a dictator of current culture because there were mitigating social institutions in peoples’ lives such as churches, families and schools (Baran and Davis 114). If media actors with self-serving and destructive intentions wanted a strategy for how to break down society to bend more people to their will, it was made readily available to them, however unintentionally, by Klapper and other theorists.
Consumer protection laws of a sort directed at media and advertising do currently exist under the auspices of agencies like the FTC and the FCC. Normally these laws don’t deal much with physical harm unless the issues are safety related. Physical injury is however sometimes considered as part of the negligent infliction of emotional distress tort in some states. It is acknowledged in some jurisdictions that physical assault can cause emotional distress, and severe emotional distress can cause harmful physical symptoms and disease (Trager et al 185). If the link between the media and emotional abuse is better studied and acknowledged, and the link between emotional distress and physical disease is likewise given due consideration, a pathway to further regulation of media to protect consumers might be blazed through studies of the physical sufferings of those harmed when media abuse goes too far.
The FCC is permitted to regulate broadcast media to an extent because the airwaves are considered the property of the people. Broadcast stations are thought to have a responsibility to the public due to the people’s ownership of the airwaves (Trager et al 402-403). It is less clear who, if anyone, “owns” the internet, but it was originally partially developed by US taxpayer-supported institutions (Press). As of 2015 the amount of foreign ownership of US communications companies was capped at 25% with the then-current FCC commissioner proposing to raise the cap on foreign investment or eliminating it entirely (Traeger et al 404). The policy that foreign companies would be allowed to own anything that US citizens own or paid to develop is something the FCC could reconsider by following their normal procedures for a change of policy (Traeger et al 401). Any corporation, association or individual affected by FCC regulations has the legal right to a challenge in Federal appellate court (Traeger et al 402). Foreign exploitation via international internet scams is rampant all over the world but we still allow access to our citizens by criminals from foreign countries who don’t participate in international anti-fraud measures (“Report international scams…”). Economic exploitation tips the power balance in the abuser’s favor (Bancroft 156).
Tactics Employed by Domestic Abusers
Here are some of the techniques that abusers use to gain control over their victims (Bancroft 74, 145-146, 213-214, Dwyer 55-56).
Ridicule, name calling, insults, put-downs, and sarcasm
Distorting what was said
Accusing you of doing what they do, or thinking the way they think (projection)
Using a tone of absolute certainty and final authority – “defining reality”
Turning your grievances around to use against you
Criticism that is harsh, undeserved, or frequent
Provoking inappropriate guilt
Playing the victim
Threatening to harm you
Discrediting, spreading rumors
Getting other people to put pressure on you
Spreading confidential information (doxxing)
Presenting one face in public and another in private to gain credibility and trust
Using events from the past or situations that can’t be changed as a reason a person should accept poor treatment
Separating the target from sources of support
It is not easy sometimes for us to imagine that our entertainment providers would knowingly set out to abuse us, the consumers. People often feel warm emotions toward celebrities and providers of entertainment. A paper by Eduard Sioe-Hao Tan suggests why that might be the case (Tan 45). “A lay person’s understanding of what it means to entertain somebody involves being amusing or giving pleasure, activities associated with being a good host to a guest.” The entertainer may be considered responsible for voluntarily rendering a personal service to the viewer (Tan 45).
One trap that is easy for consumers to fall into is to forget that we are not really the ultimate customers for most entertainment products – the advertisers and sponsors are. We may be the audience, but we are not the customer. When considered in that light, it is a little more understandable why entertainment and media companies would be willing to actively abuse us, or at least not care if we become collateral damage.
In an article for Psychology Today, Dr. Jim Taylor proposed that what we now call “popular culture” is no longer a reflection of the genuine culture of the people, but an artificial, media-cultivated corporate culture that he names “synth culture” (Taylor “Popular Culture…”). Cultivation Analysis is the theory that the media present a view that does not necessarily reflect reality, but because people believe it does, reality changes to conform to the media (Baran and Davis 287). As early as the 1950’s, architects were creating buildings and landscapes to conform to movie and television versions of reality. The cultural landscape known as Disneyland, for example, was the product of a media corporation and was not merely appealing to existing media-cultivated tastes but actively implanting them (Hine 150-152).
If the culture we have is not based on the genuine culture of the people but is deliberately planted there by the media, I postulate that if we don’t already have it, we will end up with a government that is no longer “of the people, by the people, and for the people,” but is of the self-appointed media technocracy whose primary interest is in exploiting us (Taylor “Popular Culture…”). It’s obvious which political direction the technocracy wants us to go. If we ask why, the large media corporations have the power to remove questions from public debate through moderating content and banning users with certain views even though they claim immunity under Section 230 of the Communications Decency Act (“Does Section 230’s…”).
The Rewards of Being Abusive
Above I have listed some of abuser’s techniques – now I’ll provide some of the possible incentives that motivate people to abuse other people. Abusers enjoy the following advantages and privileges in life (Bancroft 43, 152, 153-158):
Abuse victims change their behavior and work to bolster the abuser’s self-esteem to win approval or tolerance.
Abusers gain the freedom to behave as they desire without restraint while getting lots of attention.
After being catered to, they get praise for being a great person and improve their public image when they act decent.
The comforts, privileges, and financial advantages of being catered to are too attractive to give up.
The thrill of having power is a seductive feeling.
The abuser can pick and choose low-stakes situations to act altruistic so that they can cultivate a positive image without making any actual sacrifices.
Abusing others can give the abuser temporary relief of frustration at life’s annoyances.
Others can be coerced into performing unwanted tasks or giving up resources, resulting in better quality of life or gratification for the abuser.
When people are deprived of financial resources or financial autonomy, they are much easier to control.
The abuser’s goals are prioritized while others are diminished. The abuser escapes consequences while others who would dare to engage in the same behavior are held accountable.
The abuser receives peer approval from the surrounding culture.
Disunity among a group gives the abuser more power by directing attention into fighting among themselves rather than holding the abuser accountable.
Abuse Examples and Comparisons
Here are a few examples of how members of the media have used abuse techniques to advance their agenda while disregarding the harm to individuals and society.
Abuse Example 1
Abuse benefits: Abuse victims change their behavior and bolster the abuser’s self-esteem to win approval or tolerance. Others can be coerced into performing unwanted tasks or giving up resources, resulting in better quality of life or gratification for the abuser. Financial resources are often something abusers work on transferring from their targets to themselves (Bancroft 155-156).
Abuse tactic: Using a tone of absolute certainty and final authority – “defining reality”.
Media example: The highest status people in our culture tend to be doctors, lawyers, professors, executives, politicians, sports figures and entertainers (Dwyer 19). Some of these people are at least well-educated, but many have no more knowledge or ability about most issues than we do. When people are catered to as though they are of a higher status than the common person, they often feel entitled to treat us as inferior and expect us to defer to their authority (Dwyer 19).
News content producers can be an example of media using their sense of entitlement and branding skills to claim authority they have not really earned. Before the 1970s, news programs were offered as a public service and run at a loss to the station in exchange for the right to use bandwidth on the limited public airwaves. Released from that obligation, many news programs still claim the image of public service while earning large profits by featuring “sensational, sentimental or dramatic” stories that will attract mass audiences for their advertisers (Silverblatt et al 119). In return for their airwaves generating profits for media companies, the public gains at best only low-quality entertainment disguised as news, and possibly manipulation, abuse and ill health.
Some prominent social media companies have recently declared themselves to be authorities on objective truth, supposedly in the service of their users, who they see as not as qualified to judge as their own self-declared technocracy. They employ “fact checkers” to distinguish between beneficial and harmful content. A couple of the areas they recently claim special authority on are Constitutional law and medicine (Lucas, “Does Section 230’s…”). When a technocracy was originally considered for the United States in the 20th century, sufficiently wise people, such as social scientists, religious leaders, the military, the police, Congress and the FTC were considered as members (Baran and Davis 62-63). Investigative journalists have been trying to investigate today’s new technocracy. In documenting the harsh working conditions of Facebook content moderators, journalist Casey Newton found that most of Facebook’s content moderators are employees of outside contractors. At one facility in Phoenix, content moderators are paid $28,800 per year as compared to the average Facebook employee compensation of $240,000 (Newton). Facebook periodically audits the contract workers for accuracy, with accuracy defined as what Facebook decides it is. It is unclear what the educational qualifications are to be a contracted content moderator or a Facebook employed auditor (Newton).
Abuse Example 2:
Abuse benefit: The abuser receives peer approval from the surrounding culture.
Abuse tactic: Provoking inappropriate guilt.
Media example: Netflix aired a documentary showing walruses falling to their deaths from a cliff, claiming the deaths were caused by climate change. In actuality, the falling walruses were chased by polar bears, and possibly were even frightened by the film crew’s disturbing presence in the area and noisy equipment (Foster). Netflix gained the benefit of appearing to be socially responsible while directing attention away from their own possible culpability. As professor of space architecture and author Larry Bell commented in Forbes, phenomena that we used to be taught were natural, such as earthquakes, “hurricanes, droughts, floods, blizzard cold weather conditions and such” are now our fault and we are pressured to feel guilty (Bell).
Many celebrities have shared mis-identified fire photos on social media, claiming they are current and from the Amazon rain forest, when they were sometimes not current and taken somewhere else (Richardson). Perhaps they feel less guilty about their lifestyles for spreading these often unverified messages, while at the same time enjoying social approval from their peers without having to actually sacrifice anything. One of the privileges abusers regularly enjoy is to feel better while others around them feel worse (Bancroft 31).
What is the cost to mental health of this constant bombardment of what some affix the label “tragedy porn”? Therapy for eco-anxiety is a prominent field of mental health with over 120 practitioners known as far back as 2008 (Bell). Sufferers of eco-anxiety have reported shoulder pain, fibromyalgia, fatigue, overeating, bulimia, depression and alcoholism (Bell). 96% of respondents of one study on relatively affluent Americans claimed that eco-anxiety changed their ideas about having children, 6% even going so far as to regret the ones they already have (Carrington). What is it like for a child to grow up as a regret? In one case a seven-month old baby is going to have to find out what it’s like to live through a gunshot wound in the chest as the only survivor of an Argentinian family killed in a murder-suicide pact apparently precipitated by eco-anxiety (Sacks).
Children and adults alike have been taunted with threats that important cultural traditions like Thanksgiving and Christmas will be ruined or cancelled because of climate change (Watts). This could be interpreted as doubling down on the effort to induce poor mental health in viewers because religion is one of the well-known weapons against depression, anxiety, substance use disorder, suicidal behavior and poor physical health (Whitley). Thanksgiving is a secular holiday, not a religious one, but gratitude is something both atheists and theists alike can embrace. However, too much gratitude is not good for the advertising business. If people get too satisfied with what they already have, they won’t buy as many new things. The idea that products should constantly be updated in appearance to make old versions obsolete or deliberately made not to last very long became mainstream by the middle of the 20th century in the United States (Hine 66). The media likes to encourage us to buy unnecessary products while at the same time promoting guilt in us because excess consumption is bad for the environment. That behavior results in a triple win for the media/entertainment industry and their advertising clients – they sell more products, appear to be socially responsible for infiltrating our entertainment with guilt messages, and evade accountability for their own environmental misdeeds.
Abuse Example 3:
Abuse benefit: The abuser’s goals are prioritized while others are diminished. The abuser escapes consequences while others who would dare to engage in the same behavior are held accountable.
Abuse tactics: Getting other people to pressure you, discrediting, spreading rumors, ridicule, name calling, insults, put-downs and sarcasm.
Media example: Because they claim immunity under Section 230 of the Communications Decency Act, social media corporations such as Facebook and Twitter maintain they are not liable for the actions of their users (“Does Section 230’s…”). At the same time, they can allow content they approve of and ban content they don’t approve of, boost content they favor and restrict content they disfavor, and promote or suppress users in an equivalent manner. In that way they can discredit, spread rumors, bully, harass or otherwise pressure whoever they choose by selectively enforcing speech, while avoiding proposed regulation of this privilege by manipulating public opinion to vote for whoever is unlikely to impose regulations that would reduce their technocratic control (“Does Section 230’s…”).
Sophisticated advertisers know what anxieties, fears and insecurities their target audiences are prone to, and they know how to trigger them at will and then offer products and ideas as solutions to the uncomfortable feelings that result (Silverblatt et al 291). Facebook ran a test in 2012 to see if they could go beyond mere curation and actually prompt the type of content users post on their platform by manipulating people’s moods (Meyer). They succeeded, and if there was ever any doubt, everyone now knows that they have the power to recruit their users into unconsciously propagating the media’s agendas and those of their advertisers. Fear and anxiety have been known to be aids to selling products for a long time (Packard 48, 58-59, 221-223). When Vance Packard published his book The Hidden Persuaders in 1957, the techniques advertisers studied to appeal to our fears and anxieties were still new to the public (Hine 28). Even though the methods are no longer new, they still work as the Facebook experiment demonstrates (Meyer). There are a number of possible health related side effects resulting from induced fear and anxiety, including fevers, vomiting, impotence, diarrhea, increased heart rate, fatigue, nausea, sleep problems, reduced ability to fight infections, heart disease, inflammation, irritable bowel syndrome, substance abuse, social dysfunction and suicidal thoughts (Dyer 33, 197-198, Leonard).
Even with the available legal remedies, there is a limited amount that can be done for a victim of physical or mental abuse unless they decide to stop accepting the abuse and take action to use what help is available to assist in freeing themselves. Many of the harmful mental and physical effects of media can be overcome if individuals make the decision to reclaim their agency and follow up with suitable action. Abused individuals and abused media viewers are groomed in a similar manner with deceptive seductive techniques that hide the true intent of the abuser. Abuse and grooming gradually break down the resistance and health of the target to make the target less able to fight and break free from bondage.
Dangerous and addictive products that are regulated as “vice” products perhaps provide a precedent for the legal system and government agencies to regulate abusive media in a similar manner. “Vice” products are related to activities that are not considered healthy or moral and whose use is controlled to some extent by age-related or other restrictions (Trager 547). Categories of “vice” products currently include alcohol, tobacco, hookahs, e-cigarettes, drugs, gambling, sexually explicit material, firearms and marijuana (Trager 547, 550). In the past some of the methods of combating the harm caused by the misuse of these products has taken the form of public service messages and warning labels. The battle lines which government agencies and commercial interests navigate as they both attempt to advance their opposing goals is constantly in flux, with states and local jurisdictions having a lot of leeway to tighten or loosen regulations on vice products (Trager et al 542-555). If the media is going to intentionally or negligently affect our health, I think a case can be made for providing media literacy information content on their channels in lieu of labeling on media products in exchange for the benefits their corporate owners enjoy at the public’s expense.
Some forms of media regulation have been allowed by Federal government agencies and the courts in the past to promote the ability of citizens to make informed choices about their health, welfare and the consumption of products and ideas. Here are a few examples of past attempts by the FCC.
From 1949-1989 the Fairness Doctrine required broadcast stations to provide programming that presented diverse views on controversial topics of public importance (Trager et al 408).
The personal attack rule required broadcasters to provide a rebuttal forum for the subjects of an-air attacks on their “integrity, honesty, or character”. Because the personal attack rule did not apply to public officials, it had limited power to limit one-sided attacks. Even that protection for private individuals was eliminated in 2000 (Trager et al 409).
Under the political editorial rule, private broadcasters were required to allow legally qualified candidates for public office rebuttal time in response to editorials aired either against the candidate or in favor of a rival. The political editorial rule also ended in 2000 (Trager et al 409). Public broadcasters are not allowed to endorse a candidate but can editorialize on public issues (Trager et al 409), some of which could affect the livelihoods of those who work for public broadcasters and in that case could be one-sided and self-serving. The taxpayers who fund a portion of public broadcasting involuntarily are afforded no opportunity to rebut (Trager et al 417).
Net neutrality was the requirement for internet service providers to treat all internet traffic equally and not set up paid priority service for preferred content (Traeger et al 423). Net neutrality was repealed in 2018 (Morton). Some states have started to create their own net neutrality legislation since it no longer exists at the Federal level (Morton).
There was a time when the four above regulations were considered acceptable under the First Amendment. The First Amendment has not yet changed – not the text of it anyway. I suggest that as a country we consider bringing some regulations back, as they are possible hedges against the technocracy gaining further power over us and increasing their ability to abuse.
Bancroft, Lundy. Why Does He Do That? Inside The Minds of Angry and Controlling Men. Berkeley Books. 2002.
Baran, Stanley J. and Dennis K. Davis. Mass Communication Theory: Foundations, Ferment, and Future. Seventh Edition. CENGAGE Learning, 2015.
Here is another one of my homework assignments for Media Organization and Regulations class. Please read it if you are interested in preventing financial abuse to yourself or others. Some of this information you probably know but it never hurts to have a refresher on such a critical issue. This paper has been graded but I haven’t changed anything since turning it in yet. I’ll update these comments if I do so later.
Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
13 December 2020
Dealing with Deceptive and Unfair Messages
The Federal Trade Commission, or FTC, has the authority based on Section 5(a) of the FTC Act to protect citizens from unfair or deceptive commercial messages. A message is considered deceptive if it is likely to mislead a reasonable consumer (“A Brief Overview…”). An unfair practice is one that causes or is likely to cause “substantial injury” which consumers cannot reasonably avoid and there are no “countervailing benefits” to justify it (“A Brief Overview…”).
The first line of defense for consumers is information. The FTC provides a web page with information to help consumers recognize deceptive messages as well as tips on what actions to take if they receive such a message (“How to Recognize…”). Blocking and reporting messages are recommended strategies. The FTC recommends reporting SPAM messages to the app the consumer is using, as well as to the FTC. The FTC investigates complaints and if unlawful activities are found, the FTC will take administrative or judicial action which may eventually result in civil penalties (“A Brief Overview…”).
An example of one case brought by the FTC to get justice and relief for victimized consumers is Federal Trade Commission vs. Ecommerce Merchants, LLC and Cresta Pillsbury, Jan-Paul Diaz, Joshua Brewer and Daniel Stanitski (Federal Trade Commission… 1). The FTC alleged that the defendants were guilty of sending 30 million unwanted SPAM messages that were not only unwanted but deceptive (Federal Trade Commission… 5-6). Just receiving the unwanted messages was financially damaging to the consumers who according to their service contracts possibly had to pay or use credits to receive the messages (Federal Trade Commission… 7). Monies that the deceptive messages generated for the defendants was deemed by the FTC to be unfair and the defendants likely to continue to offend (Federal Trade Commission… 9).
The FTC petitioned for the following actions (Federal Trade Commission… 9-10):
That the activity cease while the case is pending, the assets preserved and accounting performed.
The defendants be permanently banned from sending these messages.
The injured consumers be released from contracts, be paid restitution and refunds, and fraudulently obtained monies be confiscated from the defendants.
Repayment of court costs and other expenses deemed necessary by the court by the defendants to the plaintiff.
If implemented, it is my opinion that the above should adequately punish the offenders and repay the consumers if the victims are allowed to collect not only for the dollar value of what they lost but other expenses such as the time they spent dealing with and documenting the problem. The consumers should also be made whole if they had to pay late fees, have their credit score damaged or other such losses that can occur when a financial problem starts snowballing.
A weakness in this kind of enforcement is apparent when consumers are victimized by international scams. An organization called econsumer.gov, an initiative of the International Consumer Protection and Enforcement Network (ICPEN), attempts to unite consumer protection agencies from around the world to fight international scams. With only 40 countries participating, obviously there are many countries that do not cooperate. I think we should consider not allowing messages from countries that don’t participate in this or some similar international anti-fraud program to be sent to US-based text or email addresses.
Here is one of our new Christmas traditions. For the second year in a row, here is #12daysoftomsbeard! Last year we distributed tags to family members on Christmas day to color on and decorate. We invited them to look for #12daysoftomsbeard on Instagram from December 25 to January 6. This year since we may not see family members in person on Christmas, I’m using the mail to try to get decorated tags to put on Tom’s beard. You are invited to decorate a tag from the image below and send it to us in the mail. Click the image to download a PDF to print out. Enjoy!
Everyone I know is probably getting tired of me saying that we have to be wary of the communication technology we use. A lot of it looks like it has a beneficial purpose on the surface but is something else when you dig into it a little deeper. I am a heavy user of social media and technology for marketing purposes so rather than stop using it I’m trying to be more careful about the amount of exposure I have and the type of exposure. I have never used Snapchat. For my homework I had to write about an indecency lawsuit against Snapchat so had to quickly read about how it works and what it does. It is widely believed in some circles that large segments of leaders in media, culture and business are constantly looking for ways to groom minor children for sexual exploitation. Do you agree or disagree? This paper has been graded but I didn’t change anything before publishing. I am not an attorney or law student, I am a Marketing and Advertising Communications major.
Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
29 November 2020
The Snapchat Indecency Lawsuit
Snapchat is a messaging app that also features paid advertising and content reformatted and republished from other information providers, known as Discovery partners. When Discover first launched, Snapchat stated on its blog that the Discover partners would be editors and artists who are “world-class leaders” providing “important” content, superior to social media which shows only what is “most recent or most popular” (Team Snapchat).
The Discover feature of Snapchat generated a lot of criticism when it was new. Among other complaints, a lot of users disliked the Discover content being featured prominently in the display and being difficult to ignore if one was using the app for other purposes such as chatting or photo sharing (Dredge). Complaints about sexually offensive material being pushed to minors led to a class action lawsuit against Snapchat citing violations of Sections 230 and 231 of the Communications Decency Act of 1996 in addition to other violations of State consumer law (Doe, John vs. Snapchat, Inc.). Here is a listing of the five causes of action in the complaint (Doe, John vs. Snapchat, Inc.):
Violations of Unfair Business Practices Act [Cal. Bus. & Prof.Code § 17200]
Violations of 47 U.S.C. §230
At the time of the lawsuit, around 23 percent of users of Snapchat were between the ages of 13-17 (Doe, John vs. Snapchat, Inc.). Snapchat was not accused of singling out underage users to push sexually oriented content to, rather the lawsuit was based on failing to warn users about content that was inappropriate for minors and failing to provide a way to filter out unwanted adult-oriented sexual content (Doe, John vs. Snapchat, Inc.).
Here are some titles of sampled “important” articles that “world class” editors and artists selected for their users that were alleged by the plaintiffs to violate decency and consumer laws:
“10 Things He Thinks When He Can’t Make You Orgasm”
“F#ck Buddies Talk About How They Kept It Casual”
“23 Pictures That Are Too Real If You’ve Ever Had Sex With A Penis”
In the past, marketers have been criticized for using cute animal mascots to make beer brands more appealing to minors while claiming that they are only marketing to people who are old enough to legally consume the product (Andrews, Newman). It was alleged in the Snapchat lawsuit that some of the images accompanying the offending articles appealed to kids by showing Disney characters paired with sexually suggestive captions and an illustration showing two dolls in a dollhouse engaging in sexual intercourse (Doe, John vs. Snapchat, Inc.). In the opinion of the plaintiffs, such images appear to be “directly marketed to minors based on the use of cartoons, childhood relatable images, and very young looking models” (Doe, John vs. Snapchat, Inc.).
Indecent material can be defined in different ways. The Supreme Court considers indecent material to be “nonconformance with accepted standards of morality” (Trager et al 457). To the FCC, indecency consists of “sexual expression and expletives” that are deemed harmful to children and therefore prohibited on broadcast television and radio at times of the day when children are likely to be exposed (Trager et al 442, 456).
By selecting and curating content, it could be argued that Snapchat took on the role of information content provider. A Snapchat spokesperson said that “Our Discover partners have editorial independence…” (Gardner). Snapchat may want to give the impression that the discover partners are truly independent but they can be de-platformed instantly if the CEO does not like the content they provided, as former Discover partner Yahoo found out (Flynn).
Section 230 of the Communications Decency Act of 1996 puts most of the burden for avoiding offensive non-broadcast content on the end user, or the parents or guardians of the end user if the person is a minor (47 U.S. Code…). The law distinguishes between an interactive computer service, which is a passive tool for users to publish and consume the content they choose, and an information content provider that selects material for distribution (47 U.S. Code…).
However, I think a case can be made that Snapchat had a duty to warn. Section 230 subsection D, Obligations of interactive computer service, states (47 U.S. Code…):
“A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.”
Snapchat does not allow users under the age of 13, and asks for birth dates during the signup process, so they knew that minors were using their app (Doe, John vs. Snapchat, Inc.). In that light, I think it could be argued that Snapchat was at best negligent because of their following actions:
Deliberately choosing brands such as Cosmopolitan, MTV, Comedy Central and Vice to provide content
Pushing the content headlines by making them part of the user interface so that everyone sees them without seeking them out
Pushing the content headlines unfiltered by age
Combining sexual content with images that appeal to children
Dishonesty about their editorial goals and standards for the Discover content