One of my favorite regular columns is The Ethicist over at the New York Times. I am not entirely sure whether my rate of agreement with the recommendations has increased or decreased since Chuck Klosterman took over the post, but then, part of what makes me eager to read the column is that it is routinely just as stimulating to read it and disagree. Now, maybe I am peculiar in that regard — after all, it gives me an opportunity to think, “if I were the Ethicist …” and I suppose I do kind of relish imagining having the job. But at any rate, when Klosterman in today’s column missed what I felt was an important and useful angle in his response to a question about the ethics of advertising, I was hardly disappointed — mostly I was just glad for the prompt to piece together my own thoughts.

In case you are paywalled out of the NYT (avid reader, you!), the gist of the question is this: since advertisements are aimed at creating spurious associations in our minds (as between swilling abysmal light beer and enjoying a rollicking sex life), and these associations cause us to part with our money in vain pursuit of impossible outcomes, is advertising, at least as such, an unethical form of behavioral influence? Klosterman answers in the negative. We know what advertising is trying to do and how it is accomplishing its goal, he notes, in stark contrast to true subliminal messaging, which flies under the radar of conscious awareness and therefore pushes the ethical envelope. Plus, he observes, advertising would not get very far if it were restricted solely to methods of rational persuasion. Klosterman argues that since viewers have a choice to avoid a given ad, its use of biased or manipulative techniques cannot be considered out-of-bounds so long as the content isn’t deceptive or defamatory to competitors or aimed at children.

I do not think this is a bad analysis, as far as it goes — but I do think it is incomplete. And I think that a fuller analysis would move us squarely into the topical ambit of this blog. (At Stanford Law, we know not to write too far without establishing subject-matter jurisdiction!) Klosterman himself frames this as a partly legal issue at the outset — the Federal Trade Commission and the Bureau of Consumer Protection exist in part to implement some limited, legislatively authorized vision of advertising ethics. But advertising is also a neuroethics issue. Of course I would think so — CLB alumna Emily Murphy made this exact point alongside two of my former bosses in a 2008 paper called Neuroethics of Neuromarketing. The paper argued that if “stealth neuromarketing” — the use of neuroscience methods to optimize the efficacy of advertising, deployed in ads without disclosure — becomes sufficiently widespread and effective, it will threaten consumer autonomy unless companies adopt and abide by a code of ethics.

Today’s Ethicist, though, invites a slightly different neuroscience angle. It calls up the old paradox embedded in the “view from neuroscience.” We have known all along that advertising, like anything else that impinges on the mind, affects the brain. How could it not? And yet, when you stop and actually think about the barrage of ads you experience every day as deliberate attempts to rewire the motivational circuits looping between your thalamic regions and your frontal cortex, you might start to feel a little wronged. Before you get too worked up, though, hang on to perspective — it is also possible to think of anything anyone says to you as an attempt to change your brain. Still, viewed in this light, it feels like Klosterman is going a little easy on advertising. It would be one thing if advertisers were trying to change your brain in ways that better equipped you to navigate the world and realize your preexisting desires, also known as rational persuasion. But much advertising involves companies making you worse at navigating the world (causing you to associate smoking with rugged individualism and not with lung cancer) and foisting previously uncontemplated desires on you, all in the service of parting you with your money. Somehow, the concretizing power of neuroscience — thinking of it in brain terms — makes the whole business sound much more injurious and ethically questionable. Who likes feeling that their neurons are being hijacked?

Of course, maybe Klosterman’s point that we expose ourselves to advertising voluntarily (by, e.g., failing to change the TV channel when the commercials come on) serves to rehabilitate the whole practice. Maybe if his premise were convincing I would agree. But from what we know of behavioral psychology, this notion of voluntary consumption seems unlikely in a world absolutely saturated with ads. Researchers in the field, especially Roy Baumeister, have amassed considerable evidence pointing toward a phenomenon called ego depletion: the tendency of willpower to function as a finite, slowly-replenishing, but nonetheless exhaustible resource. If it is true that each advertisement we come across requires an act of will to resist viewing, then Klosterman’s model only holds true for the first few we see on a full willpower gas-tank. After that, we cannot sensibly be understood as having given any kind of robust consent to the ad’s effects.

So, in a few ways, I think Klosterman could have pressed the issue a little harder from a neuroscience angle. Still, critique is all well and good, but it does not tell us what we should be doing, and this is, after all, a comment on The Ethicist. Here, though, I find it difficult to say anything conclusive. It seems strange to suggest that we should try enact policies aimed at limiting the efficacy of advertising; would the underlying idea be that we are okay with companies colonizing our brains as long as they don’t get too good at it? If that sounds strange, then what is it that we want advertising to do in our society? Klosterman thinks it cannot be limited to mere informing at the expense of persuading; even if you disagree with him and think that is a good line to draw in theory, it nonetheless becomes extraordinarily tricky to implement in practice in a principled and consistent manner, since informing and persuading are on some level inextricable. What started out, in a neuroscientific register, as an intuitive and uncontroversial principle — “we only want people changing our brains in ways we would endorse!” — quickly runs up against messy political and social realities when we try to shift to the register of ethics, law, and public policy.

Still, this is a conversation that we ought to take every opportunity to have. If neuromarketing begins to deliver on its powerful promise, then the challenge of squaring advertising with our understanding of the brain — which most of us, like Klosterman, are for now content to skate over without too much worry — will be thrown into exquisitely sharp relief. We should start getting clear as soon as we can on what we want out of advertising, which will require, among other things, that we all learn to shift more smoothly between the neuro register and the ethics / law / public policy register.

Roland Nadler, Stanford Law School class of 2015
CLB Student Fellow