Friday, October 9, 2015

Image-consciousness and the Law

In my book Laws of Image: Privacy and Publicity in America, I chronicle the rise of what I describe as "laws of image" in the twentieth century, and the phenomenon of "personal image litigation." These legal developments tracked an image-consciousness in American culture -- our fascination with our looks, public personas, and the impressions that we make.

An especially intense brand of image-consciousness took root in the 1920s, an age when consumer culture and mass entertainment assumed a central position in American life, and when advertising, fashion, celebrity, and the media became important arbiters of values and conduct.
1925 beauty ad (credit) 

New visual media, such as photography, photojournalism, and motion pictures, accentuated the importance of appearances and created the sense of being subjected to the critical gaze of others. Images had become part of the public landscape, appearing on billboards, product packaging, and movie screens. Film stars, who exercised meticulous control of their images, became role models and icons, modal selves in a culture where the key to success was seen as the ability to create a pleasing image to amuse and impress others.

The emerging advertising industry, in conjunction with the new field of popular psychology, promised people that they could use conspicuous consumption to achieve a stunning image and distinguish themselves from the crowd. Advertisements played upon popular insecurities with identity and appearance, and they reinforced the perception that images were essential to social advancement. As an ad for Woodbury's Soap warned: "Strangers' eyes, keen and critical -- can you meet them proudly -- confidently -- without fear?" In the social world depicted in 1920s ads, the potential for humiliation, shame, and social failure lurked everywhere.

The rise of white-collar occupations led to a new emphasis on "salesmanship," which hinged on pleasing appearances. At every level in the white-collar hierarchy, success at work was said to require the careful manipulation of one's acts, looks, and speech to meet the emotional and psychological demands of customers and clients, managers, and coworkers. Before long, the imperatives of the world of sales and service were applied to social relations more generally. The efforts of salespeople to sell products to skeptical customers became a metaphor for the social struggle waged by every person in an effort to distinguish herself in the modern world.

A cottage industry of personal guidebooks arose to teach the skills of "personal salesmanship" and "impression management." Dale Carnegie's series of lectures on public speaking, published as the bestselling How to Win Friends and Influence People, reinforced the idea that the key to success was to manipulate one's image in order to impress and manipulate others. Carnegie held up as a model of success the stage performer who had plotted out every aspect of his routine: "everything [he] did, every gesture, every intonation, every lifting of an eyebrow had been carefully rehearsed in advance, [his] actions were timed to split seconds." In the social drama of his or her own life, every person should perform with similar charm and precision.

As this image-conscious sensibility gained purchase on the popular imagination, existing areas of law were expanded and new laws created to protect people's interest in managing, defending, and controlling their public images. In the 1930s and 40s, a number of states recognized the tort "right to privacy." Libel claims increased, and courts were extending libel law to address a range of harms to reputation and public image. A new tort action of intentional infliction of emotional distress remedied serious, intentionally inflicted injuries to people's feelings, including their feelings about their images. In different contexts, courts were recognizing a right to one's image; tort law served as a stage for, and participant in, the cultural preoccupation with personal image.

1 comment:

Shag from Brookline said...

The Brandeis et al "The Right of Privacy" was published in 1890. Edward Bernays was born in 1891 and died in 1995. He has been referred to as the "father of public relation." I would presume that Bernays' career started in the 1920s. Public relations has a relation to propaganda, as well as pyschology. (Bernays was related to Freud.) Celebrity, brand, etc, are fostered by public relations. I recall as a youth in the late 1930s Old Gold cigarette's "Not a cough in a carload." This turned out scientifically to be a carload of something else. Despite some progressive legislation to this day we continue to get various carloads. The FDA and FTC are limited in what they can do. Today we have the impact of public relations with the 2016 presidential campaigns, attempting to convert some candidates into silk purses. Money fuels public relations. Money talks politically. But who protects the public from celebrity, brands, propaganda? Protection of image may be sound in theory, but not when it causes harm to the public. As I noted in a comment on an earlier post, we've came a long way from "The Right of Privacy." But the road has become rocky as deep pockets will sue at the drop of a hat to protect image regardles of its merits.

I look forward to more posts on Laws of Image, including the role of the Administrative State.