The same year Subliminal Seduction hit the shelves of bookstores across the country, the U.S. Federal Communications Commission (FCC) received complaints that a television station was using subliminal messages, which had not been reported since the 1950s. In early 1974, the FCC responded by issuing a public notice stating their official position on subliminals: "We believe that the use of subliminal perception is inconsistent with the obligations of a [broadcast] licensee, and therefore we take this occasion to make clear that broadcasts employing such techniques are contrary to the public interest. Whether effective or not, such broadcasts clearly are intended to be deceptive." (Three years later, the FCC issued another of its rare statements on subliminals, an 8-page "information bulletin" on subliminal projection.)
In the year 1984 -- the mention of which inevitably brings to mind George Orwell's book on technical totalitarianism -- a subcommittee of the House Committee on Science and Technology addressed the state of subliminal communication technology. Chairman Dan Glickman opened the hearing by stating that the subcommittee had "made it a theme this year to explore in addition to the other areas of our jurisdiction those things which concern the public in a kind of Orwellian sense as a result of the nomenclature of this year 1984." Among the guests who testified was FCC official Dr. John Kamp, who updated the subcommittee on the history of government policy toward subliminal communication.
According to Kamp, the FCC was still receiving complaints about sub-threshold messages "perhaps one a month or so," but the "complaint level is now so low as to be only a permanent trace at the agency reflecting, as far as we can tell, more public fascination with this issue and concern over the undesirable manipulative possibilities of the technique than evidence of actual use." Kamp reported that the FCC had not recently "received a complaint that on its face was sufficient for us to warrant a major investigation." Representative Glickman told Kamp to stay alert for subliminals: "I would just encourage you to keep a watch fully on this. I think with technology, the ability to modify tape in ways that we never dreamed of before, both video tape as well as audio tape, I think the kind of things that may not have occurred in the past could occur in the future."
The FCC isn't the only government entity that has been drawn into the subliminal scares. A controversial Nevada court case highlighted the potential legal dilemmas that can arise during periods of subliminal hysteria. The families of two boys who committed suicide in 1985 sued Judas Priest, the bad boys of British heavy metal, for allegedly placing in a song a subliminal message -- "Do it" -- that the plaintiffs believed pushed their sons into suicide. The two-word trigger was purportedly buried in the song "Better By You, Better Than Me," from the band's 1978 album Stained Class. The plaintiffs sought $6.2 million dollars for the band's "product liability."
Absurd as the lawsuit may sound, the case, which was tried in 1989 and 1990, resulted in some landmark decisions about the legal standing of subliminal communication. Among the unusual matters that Justice Jerry Carr Whitehead was forced to rule on was this perplexing question: are subliminal messages afforded the First Amendment protection of free speech? In a pre-trial motion, Judge Whitehead declared that subliminals are not protected speech, due to the fact that hidden messages do not impart information as do statements that are actually heard. Whitehead further said that subliminal messages are an invasion of privacy. With this issue decided, the trial began.
A number of experts on subliminal stimuli spoke at the trial, on behalf of both the parents and Judas Priest. The man who sounded the subliminal alert in the 1970s, Wilson Bryan Key, supported the plaintiffs' view in pre-trial testimony, as did the more academic-minded researcher Howard Shevrin. Timothy E. Moore, a scientific skeptic of subliminals, weighed in on the other side. In an fascinating review of the case in Skeptical Inquirer magazine, Moore later summarized the views he shared with the court: "It was my opinion that there was no scientific support for the proposition that subliminal directives could influence behaviors of any kind, let along suicide."
Judas Priest's lawyers argued that in the first place, the band had placed no subliminal content on their album. (An examination of the original 24-track recording turned up no subliminals on any one track -- so if a subliminal sound resembling "Do it" was indeed present, it was likely an unintended blend of sounds from separate tracks.) Secondly, the defense argued, even if a subliminal were present, the power of such messages to move people to action has never been proven.
After an exhaustive review of the subliminal issue and many close listenings to the song in question, Judge Whitehead reached the same conclusion. In his final ruling, in favor of Judas Priest, Whitehead stated his conclusions on the subliminal threat: "The scientific research presented does not establish that subliminal stimuli, even if perceived, may precipitate conduct of this magnitude.... The strongest evidence presented at the trial showed no behavioral effects other than anxiety, distress or tension."
Judge Whitehead also pointed out "other factors which explain the conduct of the deceased independent of subliminal stimuli." Judas Priest lead singer Rob Halford, who like the rest of the band attended every session of the two-week trial, said later that those who blame the suicides on a rock song overlook the genuine causes of the tragedy: "These two young men lost their lives because of their tragic involvement in drugs and alcohol and dysfunctional family units in which they weren't given proper care, attention or guidance. I'm not making light of a tragic situation, but this trial was just an attempt to shift the burden of guilt to someone else's shoulders." Though the victims led anguished lives, said Halford, "we gave them a great deal of pleasure with our music."
When his band won the trial in August of 1990, Halford said "it's a great day for Judas Priest -- more importantly, a great day for artists all over America." Though bitter about the court experience, Halford said "it was important that we were there to stand up for ourselves and for our music and, to some extent, for the values of the American Constitution, which is rather ironic considering it was four Englishmen."