Art Saint Louis is having a virtual exhibition on their web site, from July 1 – September 1, 2022. I have had one piece selected for this show so I’ll be in it along with 25 other artists.
I’m also in an upcoming gallery show at Art St. Louis called “(all the) Feels”. It runs from July 30 – September 8, 2022. The opening reception is August 6 from 5-7 pm. One of my collages was selected for this show.
For several years I had pretty much given up on producing “fine art” pieces, even though I still had lots of ideas. The main reason was that my time seemed better spent making more craft-oriented things that helped promote my Etsy shop, the blog posts I was writing for Schnarr’s Hardware, or the teaching I was doing at the time. By then, life had taught me several times over not to put all my eggs in one basket when it comes to making a living. I was trying lots of things to see what worked and what didn’t.
In the fall of 2019 I started working on a Master’s Degree at Webster University in Advertising and Marketing Communications. My reasoning for studying communications is that art is a form of communication, and in addition picking up more knowledge about communications can make any of my activities more successful.
My communications classes are fascinating, absorbing, and creatively satisfying, but I cannot help but be jealous of the art majors. Many of the topics I study in communications are serious, and although art can also be serious it also can be pure play and I need some of that! My undergraduate degree is in fine art. Shortly after starting my studies at Webster University, every now and then I would walk over to the art building to see what the students were up to and to find out if there were any art shows that were open to all students and not just art majors. I found two in quick succession and to my great joy made new work and was accepted into both shows. One show was meant to be one night only, and the other show, “Back To Our Roots” was intended to be up for some time but was shut down early twice, the second time due to the beginning of the COVID-19 pandemic.
I’m about halfway finished with the Master’s degree right now. I’m using the skills as I go, so I’m not putting undue pressure on myself to hurry to finish. Also I have taken a break due to tragedies in my family at the end of last summer that caused severe grief and trauma that are still greatly affecting my productivity. I’m going to resume taking classes again when I’m sure I can handle the course work. I’m getting there, but there are setbacks along the way that cause me a lot of frustration, as well as to other people who want or need something from me. I feel really guilty when I turn down any work that people want, or set any kind of boundaries. This inappropriate guilt causes me a great deal of distress that I’m trying to work through, but boundaries are necessary sometimes so that I can get my trauma symptoms under control. The art piece of mine that the judges selected for the “(all the) Feels” show is about this discomfort and guilt. It contains parts that I began earlier for a different reason, but that is what the final result is about.
One of the best ways I know to process difficult and complex feelings is to make art. So this spring I joined Art Saint Louis and have been making more art to enter into their shows. I’ve been in a few of their shows in the past but was never a member before. A friend asked me a few weeks ago why I was doing this – we were at a party, so I didn’t want to explain at that time and place that I was kind of doing it as therapy. Yes, entering shows is good for promotional purposes for myself and my work, I can practice and improve my communication skills, I might get a sale, I might even win a prize which would be good for my show history. But much more important to me is motivation to finish some pieces so that I process what is going on inside me. I’ve been through some life-changing events and personal turmoil, as many of us have. Yes the resulting feelings and symptoms are unwelcome and difficult, but I can’t just wish them away. I have to process them, and art is one of the great gifts from God that I’ve been blessed with that helps me do that. I am very grateful for the opportunity to express and exhibit.
One of my favorite ways to relax is to cut up some old magazines and make collages out of them. One reason why collages are so relaxing is that I can start them without a pre-planned project in mind and just let my subconscious and the random materials in front of me suggest the theme. Stress is a common theme, because I tend to start them when I need to work some stress out of me. Another reason is that so much printed media, like all media, is filled with images that scream out desperation.
Most media has been on a trend during our lifetimes to become more and more extreme in intensity in order to feed what some people call the “attention economy” or the “addiction economy”. Many media companies rely on an intangible resource to generate revenue – that resource is our eyes on their content. Whatever distraction can direct our attention to them and away from real life is how many corporations generate revenue now. We are not people to them, but a resource to be exploited to fullest extent possible.
A lot of friends pass old magazines on to me to use in collages, and somehow, I don’t know how or why, I’ve been getting US magazine in the mail. The theme of a lot of my art and writing is media analysis, so I don’t mind getting these magazines to see the bizarro world that some people live in and the desperation on display when celebrities need your eyes on them in order to make money and promote the bizarro world agenda. Excess can be both entertaining and disturbing. I’ve done some study on what kind of toll it takes on the people who view it, and I plan to write more in that vein on an ongoing basis. Paging through the celebrity magazines, I also thought about the mental health of the people who go to extreme measures to remain in the top echelon of attention grabbers. Surgeries, diets, fashions, casting couches, drugs, abuse – what won’t they put themselves through in the quest for status in an insulated and dehumanizing system? When they break down, how do they feel about entertaining the masses with evidence of their pain and destruction? When they look at images of themselves, are they looking for signs that the cracks are showing, knowing that untold other sets of eyes are looking for that too and hoping they find some? When does what is on the inside start to show on the outside?
To make this collage I used a stencil I have that looks like a film contact sheet to make a grid in pencil on a plain piece of white cardstock. Using a template I made with a window opening the size of the rectangle openings in the stencil, I started building up images on separate pieces of white cardstock. After adding images to each rectangle, I added textures from stencils and an a black outline with markers. I used a gray marker to add some lines to the background, and gray and black markers with the stencils to add some more texture on and around cut out words, rearranged a bit.
I deliberately tried to choose less than flattering celebrity photos on which to glue mismatched facial features to make them look more “crazy” to show how I feel about corporations and government trying to use media and celebrities and communications professionals to try to force me to accept a bizarro world as my world. The Urban Dictionary states that a bizarro world is a place where everything is the opposite of the word used to describe it. For example, “good is bad, wrong is right, white is black, logical is illogical, giving is taking, insanity is sane”, etc. It’s one of my theories, shared by many, that those who start out relatively mentally healthy generally pay a price on the inside for living in a bizarro world and being coerced into propagating its false values. Picking up one of these magazines, no I don’t believe some of the messages it’s trying to send me. Ugliness is not beauty, exploitation is not empowerment, sickness is not health, artificiality is not freshness, materialism is not happiness, and celebrities are not just like us! And no, war is not peace, freedom is not slavery, ignorance is not strength. And I don’t love Big Brother either. So there!
When I started the collage, I initially intended just to have some silly fun with some silly magazines and not necessarily think about such serious topics. I can’t seem to stop analyzing media when I see it I guess. I hope my next art or craft project will stay more on the lighthearted side!
Here are links to the stencils I used, on sale in my store:
In 2013 I wrote an article for the first issue of a personal e-newsletter I used to publish. The newsletter was called Carolyn’s Creative Connections. Other than a typo or two that I fixed, I didn’t change anything since I originally wrote it.
“Creativity, Eco-Chic and the New Frugality
As a retailer and business person, it’s not really in my best interests to discuss hard economic times. One would think I’d be more likely to try to persuade you that employment is going to go up and taxes are going to go down and prosperity is just around the corner so you’ll spend money on what I’m selling. I wish I really believed that, it would make the future seem a lot brighter and the daily tasks I need to perform in order to try to grow my business and that of my employer would weigh on me a lot more lightly. The human capacity for creativity has a way of working around obstacles put in our way. I don’t know if there has ever been a more important time to nurture creativity in our society and apply it to issues that we have to deal with.
DIY culture has always been popular in certain segments of society – hippies in the 1960s, punkers in the late 70s and early 80s, zinesters in the grunge era. DIY culture might have to become more mainstream for survival reasons. I hope I’m wrong but all indications point to survival rising by necessity to the top of more and more peoples’ priority lists.
So I find myself as a purveyor of goods and services in 2013 in the paradoxical position of urging people to be more careful with their resources and to consume less! In my opinion the key is not to stop consuming entirely because you can’t do that and remain alive, but to consume more intelligently – and to consume in ways that make you stronger and better able to face the challenges we will have in the future. My personal experience has taught me doing something proactive to alleviate whatever events or conditions that you fear makes you feel stronger and more capable. There are some things in life we can’t control but in some cases I believe people have been brainwashed into believing they are more helpless than they are.
According to Thomas Jefferson, “Cultivators of the earth are the most valuable citizens. They are the most vigorous, the most independent, the most virtuous and they are tied to their country and wedded to its liberty and interests by the most lasting bonds.”
If you find yourself unhappily in the position of having no choice but to be frugal, creativity can make your situation a lot more palatable. Loss of income is associated with a loss of status in our culture, but frugal practices are often beneficial for the environment so you can disguise your frugality by being eco-chic, an attitude made fashionable by entertainment elites. In a culture where the appearance of something is as good as the real thing, the celebrities only have to appear to be eco-chic but in your own life being more environmentally aware has real benefits for you. Take control and use eco-friendly practices to gain more autonomy in your life.
Here are a few examples and suggestions:
Frugal and Survival benefits:
High quality nutritious food and herbs filled with vitamins and free of poisons is added to your diet and improves your health.
Improving and caring for your soil helps make up for the choice farmland we’re losing to urban sprawl developments.
Knowledge of how to grow food is preserved to pass on to future generations.
If you open pollinate and seed save, the genetic diversity of seeds may save our lives if something affects monoculture crops.
Good soil and reduced use of chemicals contributes to a healthy life-sustaining water supply.
Physical activity – a stronger body is less prone to injuries in riots, natural disasters, etc.
At least there is a chance of some kind of food supply being available if roads are impassable, there are fuel shortages or there is civil unrest.
Plants reduce erosion and preserve soil.
Plants reduce urban heat sink effect and reduce air conditioning bills.
Contact with nature beneficial for mental health.
Less chance of food contamination and tampering.
Healthful foods more available in areas where there are no grocery stores such as depressed urban areas.
More diverse stock of plants adapted to your specific climate or microclimate conditions will be developed.
Plant stock and seeds can be used as barter if there is currency trouble and food shortages.
Helps sustain wildlife (if you garden organically you will be sharing at least a little of your harvest!).
Not going to the store as much reduces packaging materials and transport fuel consumption.
Less dependent on food produced from genetically modified seeds.
Children who observe you gardening learn about where food comes from and the importance of healthy soil, air and water.
Plants absorb CO2 in photosynthesis if global warming is something you worry about.
Composting reduces waste going to landfills.
Raising a serious amount of food, especially organically, is not an easy task. I myself am in no position to have a self-sustaining garden for all my food needs – I’m not even allowed to grow vegetables in the ground where I live (I can grow them in containers on the deck but don’t have enough sun). But I’ve always believed it’s better to do somthing than nothing, so I have an herb and wildflower garden. I save a lot of money on herbal tea and fresh herbs for cooking, I’m as certain as I can be that my herbs are not contaminated with anything and I’m providing a home for lots of beneficial insects which have reduced the amount of pests in my immediate vicinity – that makes life better for humans and wildlife around me due to the reduced need for chemicals. If you have a yard or even space for a few containers on a porch or windowsill, you can make a difference. Aquaponics and hydroponics are also possible indoors if you can manage the lighting requirements.
Making crafts from repurposed items
Frugal and Survival benefits:
Creative outlet improves mental health.
Gives resources that would otherwise be wasted an economic value.
Better lifestyle for less money.
Cottage industries help provide income for people who have lost their jobs.
Improves hand skills.
Keeps resources out of landfills.
Reduces the need for new goods which these days are often poorly made in countries with environmental laws a lot less stringent than ours (if they have any).
Shows off your committment to recycling and being “green”.
Fewer trips to the store mean less fuel consumed for transport.
Natural products very fashionable.
Refill your own containers and reduce the need for packaging.
Fewer harmful substances go down the drain and end up in water supply.
I used to work at a large retail store and was appalled at what constitutes a celebration of the birth of Jesus in today’s society – waiting in long lines to buy cheap junk made in other countries employing slave labor. Borrowing money to pay for things beyone one’s means – believe it or not after all we’ve learned about the consequences of too much debt you can still hear ads on the radio at Christmastime encouraging people to mortgage their home to buy Christmas gifts. Trampling people to buy cheap junk (yes someone was trampled at the store where I worked but not injured fortunately). Extra security guards on duty – what does that say about the Christmas spirit?
Frugal and Survival benefits:
Creative outlet improves mental health.
Avoid stress of crowded roads and crowded stores.
Avoid disease from being in crowds (yes there will be more diseases rampant as our society deteriorates, for example the current TB outbreak in California).
Improves hand skills.
Fewer trips to the store mean less resources used on packing and less fuel consumed for transport.
Teaches the value of homemade things.
Emphasizes the Eco-chic values that Jesus taught – keeping in mind the welfare of others, not placing too much value on material things, the value of humble and honest labor, the meaning of a gift being the love and caring that went into it and not the monetary value, etc. Whatever your spiritual beliefs are, I’m sure you can think of eco-chic ways to enhance your religious and cultural activities.
Cooking meals at home (Some of my favorite recipes)
Frugal and Survival benefits:
Creative outlet improves mental health
Can choose more healthy ingredients
Catch fewer diseases from food preparers, salad bars, buffets, etc.
Families that eat together have healthier relationships
Fewer disposable containers consumed
Can make your own sustainable choices of ingredients
Those headlines sound alarming. No one can predict the future, but if you are concerned and as a result are inspired to grow more food or in some other way become more self-sufficient, here is good news. There is no down side to growing food even if the predicted food shortages don’t happen. You’ll be better off either way, and healthier as a result of the activity. So if you have any interest in growing food or gardening at all, when has there ever been a better time?
If you would like to read all the issues of my old e-newsletter Carolyn’s Creative Connections and it’s predecessor the Carolyn Hasenfratz Design Newsletter, here is a link:
I’m also adding to that page the newsletters of my former employer Webinar Resources that I designed and wrote some of the articles for. Some of the graphics will be missing at first until I can do some fixing. I’m mostly doing this for my own reference since I’m currently dusting off some of my old social media marketing skills and seeing what is still relevant and what has changed. It helps me study marketing techniques.
Trigger warning: this blog post deals with the topic of suicide. Please get professional help if you are suffering from mental health issues. If you are afraid that you might harm yourself, please call 911 or a suicide hotline immediately. Here is the National Suicide Prevention Lifeline phone number – 1-800-273-8255.
Knowing how to make memory craft projects and having memory craft materials around is most helpful when going through something like my remaining family and I just went through. My uncle Dave was discovered deceased on August 27, 2021 and my brother Larry died from suicide on September 4, 2021.
I think some people were taken aback that I was open about my brother dying from suicide almost immediately after hearing the news. No one gave me flak over it, but I do think a few people were surprised. I did ask my Dad for permission before I posted the cause of death. My Dad and I are the two remaining from our original nuclear family of four.
There are reasons why I wanted people to know the truth right away. For one thing I wanted people to know exactly what horror we were dealing with because it’s not likely that our lives will be “back to normal” any time soon, if ever. We will be needing and asking for some leeway in meeting some of our obligations as we try to figure out what our lives are going to look like now and decide how to prioritize tasks.
Another reason is that my brother fought to overcome bipolar disorder for over 20 years, and my late uncle did as well. My brother’s illness affected our family greatly even well before it was diagnosed because there were serious symptoms that made all of our lives challenging at times, even if we didn’t yet understand what they meant. I have done volunteer work from time to time over the years to help people with mental illness, mental disabilities, or are just going through a tough time as the result of a normal grieving process. In the past I taught workshops at the former Open Door Art Studio and a few years back I donated a few days work and a lot of supplies to Artists First studio with the hope of someday doing more work there. When the COVID-19 pandemic started, my husband Tom and I did a series of eight webcasts we called #virtualartparty to help people enjoy art and craft activities to help avoid mental health problems that could result from anxiety and isolation.
I knew my brother’s suffering had increased quite a bit over the last few months. I tried to show I cared and encourage him a little by doing a couple of “art therapy” projects with him and my Dad, and with a few other people who were also going through a hard time. I was planning to do more whenever I was able. I put “art therapy” in quotes here because while I’m a trained artist I’m not a formally trained art therapist – but since all art is therapeutic, my philosophy is it’s better to do something than nothing. Even if it doesn’t work, at least you have tried. And a few minutes of distraction from misery is better than nothing as well. I have to look for something good where I can in order to go on.
I have been through a course of therapy myself to recover from an abusive relationship and the resulting serious trauma. Even though I have great empathy for sufferers I know there is a limited amount I can do to help someone else recover from severe mental illness. My Dad and I know we tried everything that we could think of to save our loved ones but we could not do it. Dave and Larry were both under medical care and as far as we know fighting hard for many years. Our help and the work of many doctors and therapists was not enough to save them. I’m grateful for the people who can be saved and sad about the ones that can’t. There is a need out there for compassion and understanding to aid others in helping their loved ones with mental illness or consoling them if the outcome turns out tragic. That’s something I can help with in a little way perhaps by writing about it and continuing to make small contributions to the general cause of mental health whenever I can. I think dealing with reality head-on is more useful for this goal than trying to cover it up. I feel devastated over what happened but it’s based on sadness, not shame. I don’t want other mourners affected by mental illness or suicide to feel shame either. So I’m trying to contribute by setting an example of frankness and truth. I am not judging others who choose a different way – we all have our reasons for how we grieve and how we process our situations.
It comforts me to try to find answers and explanations to find meaning in overwhelming situations. Right now I’m more consumed with questions than in a state of readiness for trying to find answers. That’s where the memory crafts come in. I made a few things for the funerals in a hurry, which served the purposes of mourning the dead, comforting others, and providing a needed distraction and creative outlet for myself to help me cope. Following are some pictures. It’s my way to mark just about any important occasion with art and crafts – both celebratory and mournful.
We used the same tape on Larry’s boards but I painted it a black/bronze color before we started gluing down the torn paper. This is only a tiny percentage of all the photos we would have liked to show but Larry’s friend Tim and others helped put together a digital slide show as well that was greatly appreciated by all of us.
I know several people who could use some encouragement right about now, including myself. I decided this week to get out my paper craft supplies to have a bit of creative fun and make supportive cards to use and more to give to people I know.
First I’ll explain what both self-care cards and Project Life cards are. Self care could be considered the practice of maintaining your physical and mental health in order to prevent burnout and breakdowns. While looking for some resources for my Self Care Pinterest board that I use for reference, I found some specifically aimed at caregivers of different kinds. Even if one chooses from their own free will to be a caregiver, it’s still a tough job. As these resources I found mention, one should not feel guilty for practicing self care even if you are naturally inclined to be giving – a burned out or broken down person is not in a good position to help others. We are able to be of much better service when we are strong. We are often socially engineered by individuals and institutions to sacrifice our own agency to serve interests not our own or of our own choice. I think it’s a beautiful thing to voluntarily share but not to be manipulated or coerced into it. The latter is just being a victim of people who choose to live a parasitic lifestyle.
So what are self-care cards and where do they fit in? There are many types of cards with different information that people have used over the years as reminders or teaching tools. Small cards are portable and fit in a wallet, a planner, a journal, a pocket or wherever so that you can access reminders on the go or wherever it’s convenient. When learning new life habits we might need a touchstone of sorts to keep us on track. Self care cards are just cards with self-care content. They can be purchased, downloaded for printing, or handmade. I often like to use a combination of desktop printing and paper crafting methods to make or decorate self care cards for myself.
What are Project Life cards? Project Life is a commercial product developed by designer Becky Higgins intended to make scrapbooking and related memory crafts easier and less time consuming, and to relate the activity to living well and positive personal goals. Pocket scrapbooking is a generic term for using clear pocket album pages to organize cards and various paper items. Like a lot of people, I picked up the modern form of the hobby of scrapbooking in the 1990s. When I first heard of pocket scrapbooking I was intrigued and purchased some cards to use in conjunction with with my “conventional” scrapbook pages and also in other paper crafts.
Several years ago I purchased the Project Life Cinnamon Core Kit and the Road Trip Theme Pack. These sets featured lots of colors I used a lot, and graphic themes that were complementary to a number of products I already owned.
I’ve used a lot of the cards in scrapbooks and other paper projects over the years but still have a good quantity left. Because some of the Project Life cards feature positive messages and others contain grids or lines to help with journaling or record keeping of various kinds, they are well-suited to use as a base to make self care cards. If you want to make these of course the bases of your cards don’t have to be specifically from Project Life – a variety of products could be used.
One activity that I learned a few years back from a depression support group web page is the acronym G.R.A.P.E.S. It stands for:
Being Gentle with yourself
The idea behind using this acronym is to try to do one activity on the list from each category every day. From my own experience and from what others have told me who have tried it, even if it isn’t possible to do each category each and every day, striving to do it and tracking the activities each day to make sure one is continually improving does result in better mood and health. It helps you “social engineer” yourself into having a better life. This is anecdotal information of course, but if you delve into scientific research on mental health you will find out why it’s effective. In this project, I’ll show how I made self care cards track the use of activities from the G.R.A.P.E.S. categories. I put more “decoration” on these cards than is strictly needed but it’s fun to use up paper scraps while making cards that fit my own personality. And paper crafting itself is a great way to get the Pleasure “task” checked off for the day!
Tools and Materials
Project Life or other cards Scrap papers in harmonious colors Scissors Paper cutter Glue sticks Thin markers in black and colors harmonious with chosen color scheme Small letter stencils Small letter stickers Assorted encouraging stickers, die cuts, paper scraps featuring helpful sayings or sentiments, or other appropriate embellishments Rubber stamping ink – black and harmonious colors Rubber stamps Hole punch Cord or string to loop through hole
First I added paper scraps to the existing Project Life cards I had whenever I wanted to make the existing designs more to my taste. Mostly this consisted of adding paper scrap strips to the borders on some of the cards, leaving the grids or lines in view. Some of the cards were fine the way they were.
Next I assembled a variety of letter stickers from my collection that spelled G.R.A.P.E.S. For more variety, I drew some letters with marker through alphabet stencils and cut those pieces of paper out. I added the letters G.R.A.P.E.S. along the side on on side of the card. Since these cards came with designs on both sides, I used the other sides for spaces to take notes, or for making a mini encouraging collage with stickers and paper ephemera.
When necessary to make a grid to keep track of activities, I added vertical lines with thin markers.
I punched a hole at the top and added some string with a lark’s head knot so that I can use these cards as bookmarks also.
I thought some of the cards needed just a little bit more added to make them looked finished, so I stamped here and there with assorted rubber stamps and added a few more stickers.
As I complete daily activities that fit one of the G.R.A.P.E.S. categories, I’ll put a checkmark in the proper spot on the grid.
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.
The new season of the Netflix series “The Crown” is out. Around this time last year I wrote a homework assignment paper about the production elements in the show for Media and Culture class. As I start to view the new Season 4, I’m recalling our studies last week in Media Organization Regulations class on the legal aspects of privacy. How does what we learned illuminate how entertainment companies depict real people in a fictionalized drama? Here is an amalagamation of a couple of last week’s homework assignments. If you like to watch “The Crown” or other dramas based on historic events and real people, you might find some of the legal considerations involved interesting. In the series are also depictions of emotional abuse and mental illness, topics I’ve written about before and which again came up in last week’s homework. Abuse takes many forms and some of them are perfectly legal. These selections have been graded by my professor but I didn’t make any changes before publishing. Please keep in mind I am not an attorney or law student, I’m an Advertising and Marketing Communications major. Enjoy!
The Right to Privacy
The theory of a right to privacy developed in US law over about the last 130 years, derived from the 3rd, 4th, 5th and 14th amendments (Trager et al 234). The right to privacy is defined as “1) The right not to have one’s personal matters disclosed or publicized; the right to be left alone. 2) The right against undue government intrusion into fundamental personal issues and decisions” (Legal Information Institute “Right to privacy”).
A tort is a transgression by one person or entity on another’s rights, resulting in an injury (Trager et al 234). Law school dean William Prosser described four torts in the following categories; “false light, appropriation, intrusion and private facts” (Trager et al 235). Commercialization and the right to publicity are sub-categories under appropriation (Trager et al 235). The right to publicity “prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion” (Legal Information Institute “Publicity”). Besides being a subset of the right to privacy, the right to publicity differs in that it prevents unauthorized commercial exploitation of an individual rather than addressing non-commercial violations of rights.
False light, intrusion and private facts only apply to living persons (Trager et al 235). The appropriation tort is broader. It applies to living persons and in addition the deceased, businesses, non-profits and associations (Trager et al 235). The states vary a great deal in which torts they recognize – many only recognize single categories or subsets and not necessarily the same ones (Trager et al 235).
Celebrities don’t forfeit their right to privacy by being celebrities, but since people want to know about them many of their activities could be considered newsworthy (Trager et al 246). That doesn’t mean people are entitled to know facts about a celebrity that are not determined to be in the public interest (Trager et al 260, 262). A person’s notoriety might make them the licit subject of a satirical, artistic or transformative work that stops short of commercial use (Trager et al 248-249), which would interfere with the celebrity’s right to publicity.
Appropriation, Commercialization and Political Speech
Appropriation torts are recognized by 46 states, the District of Columbia, the U.S. Virgin Islands, and Puerto Rico (Trager 235). The remaining four states have yet to rule on appropriation (Trager 241). Commercialization and the right to publicity are the two torts included in the privacy law category of appropriation (Trager 235). Commercialization, also known as misappropriation, is the act of using the likeness or name of a living or dead person in advertising or for commercial purposes without seeking permission from the individual in question or that of the heirs (Trager 236, 241).
The commercialization prohibition is less likely to be applied to a deceased person than right of publicity because it is intended to prevent emotional distress to an individual by upholding the person’s dignity in preserving their personal right to privacy. As a personal right, it is not usually thought by the courts to apply after death, unlike the right to publicity which deals with the monetary value of one’s identity a form of property that can be transferred or inherited (Trager 242).
Dan Frazier is a retailer and activist who sells left-wing themed political merchandise and other products through his company Lifeweaver LLC (Lifeweaver LLC, email@example.com). In the first decade of the 2000s he started selling anti Iraq war t-shirts with the names of U.S. soldiers who had thus far died in the war as part of the design in small print. Enough families of the deceased soldiers were outraged by their family members names being used to make money for Frazier that laws were passed in several states making the sale of merchandise that appropriated soldiers names or likenesses without permission illegal (Fischer, “Mom Wants Dead…”). Frazier’s home state Arizona was one of those passing such a law (Fischer). Frazier, represented by the ACLU in a case heard in a federal court in Phoenix, was able to stop state and local officials from prosecuting him, citing First Amendment rights to freedom of speech. The federal court declined to strike the Arizona law from the books and decided to let future similar cases be decided on their own merits (Fischer). The defenses against appropriation are newsworthiness, the appropriated material being in the public domain, freedom of speech under the First Amendment, incidental use, self promotional ads for the mass media, and consent (Trager 245). How would these defenses possibly apply to Frazier’s case and any future cases that are similar?
The U.S. Supreme Court has decided an appropriation case based on newsworthiness before, in hearing whether a news station deprived stuntman Hugo Zacchini of his rights to make a profit from his human cannonball act by airing the entire act as part of a news broadcast. The court found in Zacchini’s favor, giving his right to publicity more weight than the news station’s First Amendment right to free speech (Trager 247). In Frazier’s case, newsworthiness is obliquely mentioned in the complaint (Frazier CV07-8040-PCT-NVW) but not as a factor in the decision (Frazier 07-CV-8040-PHX-NVW) though perhaps it could have been. Deaths in war are news, and courts have previously found that newsworthiness is a defense even though news content is sometimes sold (Trager 246). Dan Frazier presents his company as a retailer of products as opposed to a news organization (“Campaign Finance Report…”, firstname.lastname@example.org).
The names of those killed in war are public information, as again obliquely mentioned in the complaint (Frazier CV07-8040-PCT-NVW), and in my opinion would qualify as factual information that is in the public domain (Trager 248).
Most prominent in the complaint and the court’s findings are issues concerning free speech under the First Amendment. Cited in the decision was a U.S. Supreme Court case, Riley v. National Federation of the Blind, which ruled that if speech is a blend of commercial and some other purpose, the two purposes cannot be parsed out and must be considered together. Given this finding, Frazier’s t-shirts were determined to be protected by First Amendment rights as any other type of political speech would be (Frazier 07-CV-8040-PHX-NVW).
Ads for the Media
Mass media may use names and likenesses of public figures in advertisements for products if the identity-related elements are part of the original content (Trager 251). The court in Frazier’s case considered but declined to evaluate separately the legality of the t-shirt products themselves and catalog pictures of the t-shirts with close ups showing some of the soldier’s names. Perhaps the court did not feel it necessary to comment on whether it mattered in this context whether the names were of private or public figures since it had already found that pictures of the merchandise were “inextricably intertwined with otherwise fully protected speech” (Frazier 07-CV-8040-PHX-NVW).
Frazier made no pretense to claiming consent. His web site included a statement reading, in part, “I have no plans to remove any names or discontinue any of these products, no matter how many requests I receive” (Watters). He and his legal team believed they did not need it, and were eventually found to be correct in the legal sense (Frazier 07-CV-8040-PHX-NVW). Frazier’s personal code of ethics did not preclude him from acting in a way that caused some families of the fallen soldiers listed on the t-shirts to experience what they categorized, but were unable to prove in a Tennessee court, as negligent and intentional “infliction of emotional distress” (Read).
Frazier did not need to invoke the defense of incidental use to justify the soldier’s names on the t-shirts, but in my opinion incidental use would have applied (Trager 252). An individual soldier’s name was not the main focus of the shirt design and was in a font small enough to only be legible at close viewing (Frazier CV07-8040-PCT-NVW).
In my opinion the commercial appropriation issues invoked by the t-shirt design are not in the “zone of interest” of the Lanham Act of 1938, which is concerned with false or misleading advertising (Trager 556).
DISCLAIMER: The following is graduate student work. I’m uploading it after grading from the Professor. I rewrote one sentence that was awkward but didn’t change anything else. I made a couple of minor formatting changes for online viewing, the printed version attempts to conform to MLA style. Comments on any of my blog posts are encouraged at any time and if you have any critiques that would help me write better I especially would welcome those.
Attempting to Protect the Vulnerable from Violence
Social scientists have been studying mass media for decades to see if there is a link between consuming violent media and real-life violent behavior. All social scientists do not agree but over time the majority have come to accept that there are causal links (Baran and Davis 193-194). Many researchers use social cognitive theory as a framework for explaining how and why people learn behavior from the media (Baran and Davis 193).
Human beings sometimes observe and then imitate behavior, but imitation doesn’t happen in every instance (Baran and Davis 170). How does a violent idea escalate to violent action? There are many variables in the content itself that influence behavior. If the subjects receive punishment for their actions, the content will be imitated less frequently (Baran and Davis 176). The Hays code, which the US Movie industry imposed on itself from 1934-1965, was an example of self-censorship to avoid consumer outrage and government intervention. The strictures that filmmakers had to follow indicate early awareness that the moral and legal contexts in which violence and lawbreaking were shown did make a difference in how they were received by audiences (Hays Code).
Experiments have demonstrated that there will be more imitations of violence if the behavior is rewarded in the character’s world, the content causes emotional arousal, if the violence is portrayed in a realistic way or with humor, if the motive of the subjects is seen as justifiable and if viewers identify with the characters (Baran and Davis 176).
The circumstances under which violent content is viewed are another area of influence. Violent effects are worsened if people become de-sensitized by frequent viewing (Baran and Davis 176). Content in which the user is active rather than passive, such as in a video game, has greater effects on the user (Baran and Davis 181).
From the beginning of the study of mass media, researchers and theorists have been interested in what the individual who is viewing the content brings to the interaction between the consumer and the media. Some of the earliest mass society media theorists did accept the paternalistic view that certain members of society were more vulnerable than others to the undesirable effects of low-quality media products (Baran and Davis 21). They feared that changing populations no longer protected by older institutions would not be well-served using the media as a substitute (Baran and Davis 36).
The story of the legendary 1938 radio broadcast War of the Worlds is well known by many Americans, but it has been greatly exaggerated into myth (Pooley and Socolow). The majority of people who heard the broadcast were not fooled into thinking that the Earth was really being invaded by Martians. There were, however, some people who were affected in alarming ways and researchers did attempt to find out why. The listeners who believed the broadcast was real and in turn responded with panic tended to be fatalistic, had low self-confidence, were afflicted by phobias and were emotionally insecure (Dixon, 2). These findings are an example of acknowledgement over time by many researchers that media does not affect all people the same way, an observation known as the individual-differences theory (Baran and Davis 105).
Even as limited-effects theories were becoming more dominant among researchers in the middle of the 20th century (Baran and Davis 22), they did not discourage other theorists from examining what kind of people were vulnerable and why. Neo-Marxists conceded an advantage to elites because of their economic power (Baran and Davis 23). Carl Hovland who led a research group for the US Army about the effectiveness of propaganda in training new recruits found that in general the films they tested did not have a great effect. The team did find that balanced presentations that explained both sides of an issue were more effective on people with more education (Baran and Davis 99-100). News-flow research associated poor news information retention with lower educational levels (Baran and Davis 110). Cultural criticism based on deterministic assumptions rose in popularity among 1970s academics as a humanities-based counterpoint to postpositivist limited-effects theories (Baran and Davis 24).
Children view media differently according to their level of development, therefore the age of the person viewing the violence is another factor that determines susceptibility to media effects (Baran and Davis 178). Ever since the first generation of people raised with television came of age in the tumultuous 1960s, researchers have been interested in trying to see if there is a link between exposure as children to violence in mass media and actual violent behavior (Baran and Davis 166-167). Enough causal relationships were found to cause the Surgeon General of the United States to commission research in 1969. After the findings became known the television industry engaged in some self-policing to quell criticism and prevent government-imposed regulations that might harm their interests
(Baran and Davis 167).
In the United States communication freedom is so essential to our form of government that freedom of the press is written into our Bill of Rights. That does not mean that no legal limits on media are allowed at all, but it is difficult to create new regulations that protect some rights without curtailing others (Baran and Davis 66). Media creators who subscribe to social responsibility theory may choose to create content they believe is in the public interest but the government has a very limited ability to compel them to do so (Baran and Davis 80), assuming there would even be a general consensus on what content is actually in the public interest.
Real-life violence has many costs. Obvious direct consequences are death and injury. Even indirect exposure to violence has detrimental effects on mental health, social interaction, cognitive function and academic performance, especially in children (Sharkey 2287). Since consumption of violence in the media has been determined to be one of many contributors to real-life violence, reducing exposure or taking steps to mitigate the effects of violent media content should help reduce violence at least to a degree (Fingar 183). Since consumption or non-consumption of most media can’t be compelled by law any more than the production, would education about media help consumers make better choices?
One attempt at mitigation is media literacy, “the ability to access, analyze, evaluate and communicate messages” (Baran and Davis, 293). Participants in the Media Literacy movement believe that education is a powerful tool in the hands of consumers, particularly young consumers (Fingar 183). Studies undertaken in schools have shown enough positive changes in behavior for researchers to recommend that Media Literacy programs be more widely accepted and implemented (Fingar 189, Scharrer 82-83). In a society founded on Libertarianism (Baran and Davis 55), perhaps media literacy will gain more influence as new technologies draw people even more deeply into the world of media (Baran and Davis 192-193).
Baran, Stanley J. and Dennis K. Davis. Mass Communication Theory: Foundations, Ferment, and Future. Seventh Edition. CENGAGE Learning, 2015.
Dixon, Robert. “Limited Effects Theory.” September 2019. PowerPoint presentation.
Feilitzen, Cecilia von, et al. Outlooks on Children and Media: Child Rights, Media Trends, Media Research, Media Literacy, Child Participation, Declarations. Compiled for the World Summit on Media for Children (3rd, Thessaloniki, Greece, March 23-26, 2001). Feb. 2001. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=eric&AN=ED450947&site=ehost-live. Accessed 13 September 2019.
Fingar, Kathryn R., and Tessa Jolls. “Evaluation of a School-Based Violence Prevention Media Literacy Curriculum.” Injury Prevention, vol. 20, no. 3, June 2014, pp. 183–190. EBSCOhost, doi:10.1136/injuryprev-2013-040815. Accessed 13 September 2019.
“Hays code.” Siteseen Limited, 2017-2018, www.american-historama.org/1929-1945-depression-ww2-era/hays-code.htm. Accessed 14 September 2019.
Pooley, Jefferson and Micheal J. Socolow. “The Myth of the War of the Worlds Panic.” The Slate Group, 2019, https://slate.com/culture/2013/10/orson-welles-war-of-the-worlds-panic-myth-the-infamous-radio-broadcast-did-not-cause-a-nationwide-hysteria.html. Accessed 14 September 2019.
Scharrer, Erica. “‘I Noticed More Violence:’ The Effects of a Media Literacy Program on Critical Attitudes Toward Media Violence.” Journal of Mass Media Ethics, vol. 21, no. 1, Mar. 2006, pp. 69–86. EBSCOhost, doi:10.1207/s15327728jmme2101_5. Accessed 13 September 2019.
Sharkey, Patrick T., et al. “The Effect of Local Violence on Children’s Attention and Impulse Control.” American Journal of Public Health, vol. 102, no. 12, Dec. 2012, pp. 2287–2293. EBSCOhost, doi:10.2105/AJPH.2012.300789. Accessed 13 September 2019.
Links to things I didn’t use
If you are interested in the above topic and the media in general you might enjoy some further reading.
One of my all-time favorite novels is “Duane’s Depressed” by Larry McMurtry. I’ve re-read it enough times to have it practically memorized. At the beginning of the book,
the title character is in his early 60’s and is the owner of a small oil company in Texas. One day he comes to the realization that he can no longer tolerate his current lifestyle. He decides that he has spent way too many decades of his life driving around in pickup trucks trying to accomplish things that haven’t meant anything to him in a long time. His house is too large, too crammed with stuff and too full of family members who drive him crazy. The town is too full of people who expect him to serve on committees, solve problems and listen to complaints. He doesn’t want to deal with the oil company anymore and eventually turns it over to his son. He abruptly parks his pickup truck, walks out to a simple cabin he owns outside of town, and abdicates nearly all of his responsibilities, despite protests from practically everyone in his life.
Duane has decided for reasons not known to him yet that he is fed up with motorized transportation. The new life he has begun has been simplified into figuring out how to meet his basic needs while walking everywhere he needs to go. His cabin has almost nothing in it so when he decides to clear some brush and stockpile some firewood, he walks to a convenience store with a small hardware department to get tools since he can’t stand the thought of having to deal with the people in the town and in his house to get the tools he already owns. The store owner tells him he is acting like Thoreau so he later seeks out a copy of “Walden” and reads it to see what the store owner is talking about. This is part of his process of seeking an explanation for his behavior that he can’t give to all the people who are bugging him about it because he doesn’t yet know himself.
A lot of the book deals with Duane’s thoughts as he’s working on his new activities. Later in the book he does engage in actual gardening but while he is still just working on firewood he considers walking to the store to purchase a wheelbarrow so he can work faster. Then he asks himself why he needs to work faster and decides that acquiring stuff so he can work faster is a slippery slope back to the old life he doesn’t want any more.
I think a lot about the decision of this character not to purchase a wheelbarrow while I’m out gardening. I own a few power tools, but I usually prefer to use hand tools when I can. I do not have a philosophical or moral objection to using power tools. I will use them when I think they will help me out. One of the reasons I use a lot of hand tools is that sometimes it takes more time to deal with batteries and rechargers and extension cords and power outlets than it does to just grab a hand tool and do it. I like the exercise that comes with hand work. Probably the biggest reason is that when I’m working on my own garden, I’m working for different reasons than for a client garden. Timing IS important when working on gardening and landscaping projects even if you don’t have a deadline or have to work in the most cost-effective way possible when working on a project. Sometimes you have to whip out the power tools to get things done during the right season or in the right order before something else can be done.
I’ve been periodically working on removing these invasive honeysuckle bushes and vines in our backyard for some time. I’ve been making a big push the last few weeks and last night my husband Tom joined in. So far all of this work has been done with hands, a bypass hand pruner, a small pruning saw and a pair of loppers. Yes we could get this done more quickly if we borrowed, purchased or rented a power chain saw. But if we did that we could not converse while we work or enjoy the bird sounds. The task would become just another chore instead of a restorative activity that makes us feel good physically and mentally. Another factor to consider is the apartment complex that is adjacent to our backyard. I hate it when weather nice enough to open your house windows finally comes along and you have to abruptly close them because all you can hear are leaf blowers, saws and lawn mowers. This is less of a problem if your property is large but as you can see ours is not and we have extremely close neighbors that I would rather not disturb if it’s not absolutely necessary.
Like the title character in “Duane’s Depressed”, I appreciate taking time when possible to do things the slow way and the simpler way. When I first read “Duane’s Depressed” 20 years ago I had not heard of mindfulness. I don’t think the word mindfulness is even in the book but that is part of what Duane needed without knowing it. Gardening is one of the things I do to help achieve it – when I’m gardening all I’m thinking about are the sights, sounds, smells, textures and sometimes even tastes I’m experiencing. The effect on my well being is almost like magic!
No, I haven’t yet read “Walden”. The character who mentions Thoreau to Duane refers to him as a “Yankee a**hole” and Duane’s therapist calls him “that gloomy man”. Not exactly a ringing endorsement is it! Have you read “Walden”? If so, what did you think? In this novel Duane also reads “Remembrance of Things Past” by Proust which he hates 90% of, so I haven’t picked that one up yet either!