Calvin Klein Unzipped:
A Look at the Morality of Selling Teen Sexuality
by Anne Cunningham
Ph.D. Candidate, University of Tennessee, Knoxville
Abstract
Calvin Klein's summer 1995 jeans campaign featuring teen-agers in
sexually provocative poses caused a stir within the advertising industry, the
F.B.I., and the press. This paper examines how the campaign pitted two of our
society's most basic values, freedom of expression and protection of children,
against one another, then attempts to answer the pressing ethical question left
out of much of the public debate -- Is it okay to use teen sexuality to sell
products?
Calvin Klein Unzipped:
A Look at the Morality of Selling Teen Sexuality
by Anne Cunningham
Ph.D. Candidate, University of Tennessee, Knoxville
Abstract
Calvin Klein's summer 1995 jeans campaign featuring teen-agers in
sexually provocative poses caused a stir within the advertising industry, the
F.B.I., and the press. This paper examines how the campaign pitted two of our
society's most basic values, freedom of expression and protection of children,
against one another, then attempts to answer the pressing ethical question left
out of much of the public debate -- Is it okay to use teen sexuality to sell
products?
Calvin Klein Unzipped:
A Look at the Morality of Selling Teen Sexuality
Anne Cunningham
Ph.D. Candidate, University of Tennessee, Knoxville
Paper submitted for the Professional Freedom and Responsibilty
Session
Please address correspondence to:
Anne Cunningham
908 Oglewood Ave.
Knoxville, TN 37917
(423)637-8612
[log in to unmask]
Abstract
Calvin Klein's summer 1995 jeans campaign featuring teen-agers in
sexually provocative poses caused a stir within the advertising industry, the
F.B.I., and the press. This paper examines how the campaign pitted two of our
society's most basic values, freedom of expression and protection of children,
against one another, then attempts to answer the pressing ethical question left
out of much of the public debate -- Is it okay to use teen sexuality to sell
products?
Introduction
Flipping through a magazine, you come across a picture of what
appears to be a teenage girl in a tight white t-shirt and a denim skirt. She is
lying on her back, legs sprawling, panties exposed, seductively stroking her
lips. On a New York City bus you see a poster of a boy with his shirt off,
sitting cross-legged in blue jean cut-offs that expose the crotch of his
underwear. And finally, while channel surfing, you come across a scene of a
teenage boy, standing in a dingy basement-like den with shag carpet and paneled
walls. An off-camera man tells the boy to rip his shirt off and then comments
on the boy's nice physique. Has child pornography just been legalized in the
United States? Or has Calvin Klein just launched his latest advertising
campaign?
Calvin Klein's summer 1995 jeans campaign featuring teen-age boys
and girls, some reportedly as young as 15 years old, in sexually provocative
poses and suggestive situations caused a stir within the advertising industry,
the Federal Bureau of Investigation, and the press. This paper outlines the
controversy raised by Klein's advertising and examines how the campaign pitted
two of our society's most basic values, freedom of expression and protection of
children, against one another. In an attempt to answer the pressing ethical
question left out of much of the trade journals' and popular press's debate --
Is it okay to use teen sexuality to sell products? -- the paper examines the
larger context of advertising research and regulation, First Amendment law, and
child pornography statutes. After reviewing each of these four areas, the paper
presents the moral arguments on both sides of the CK jeans campaign and
concludes that the protection of children is more compelling than the right to
sell. Therefore, advertisers have a responsibility to avoid sexual images of
teens and in doing so may be able to improve the image of their profession which
is generally perceived as lacking a conscience.
The Klein Campaign
Many felt that Klein's campaign looked more like child pornography
than a pitch for denimwear. Patrick Trueman, director of governmental affairs
for the conservative American Family Association, compared Klein's campaign to
two well-known pornographic magazines and concluded that the ads were even
worse. "'Hustler and Playboy may try to portray models in a childlike way, but
Calvin Klein's ad campaign goes far beyond this (Sachs 1995).'" Explaining what
many saw as questionable in the campaign, Carol Moog, president of an
advertising consulting firm in Pennsylvania, said , "'The heart of the campaign
is coercion and exposure and fear and anxiety on the part of the models. The
ads convey dominance of an adult over a child and they convey possible sexual
abuse. And there's an exposure through the off-camera voice -- 'Turn around;
pick up your shirt.' The young person demonstrates a reluctance, an
intimidation, a sense of feeling coerced. (DeCoursey 1995).'" Frank Russo of
the American Family Association put it more succinctly saying, "'This campaign
will quite possibly appeal to pedophiles (Schwartzman 1995).'" Parents were
also quick to condemn Klein and draw the child pornography connection. One
mother noted in Advertising Age (1995), "Calvin Klein's ads have always been on
the cutting edge, promoting sex, but these ads are just child pornography."
As this mother observed, Klein's campaigns have become known for
their sexually explicit and sometimes shocking imagery. Another previous ad for
Calvin Klein jeans shows the torso and upper legs of a muscular, naked,
water-drenched young man, lying on a rock and holding a pair of Calvins over his
genitals. Like most of Klein's advertisements, there is no body copy
explaining the product or its features. This is image advertising in its purest
form, and the image Klein sells is sexy and sexual. Another ad for Obsession, a
Calvin Klein fragrance, shows model Kate Moss lying naked on a couch with the
tagline "Obsession for men." Klein admits that his advertising is sexy. "'The
photographs tell a story. And we try to do it in a way that's inventive, that's
modern, that's eye-catching. That's sexy. . . But,'" he says, "'we're not
trying to provoke. We're not trying to shock, and we're not trying to create
controversy (Kaplan 1995).'"
While his earlier campaigns have raised a few eyebrows, they have
landed within the bounds of reasonable advertising because they feature adults
in adult situations (although admittedly they are situations that few adults
find themselves in on a regular basis). But where Klein crossed the line with
the CK jeans campaign was in placing teenagers in what some considered to be
adult situations. Trueman commented on one of Klein's waif-like models saying,
"Kate Moss is an adult. Those ads may have been distasteful, but (not
pornographic) (Sachs 1995).'"
But were the denim ads pornographic? The models were all clothed
(albeit scantily) and none was shown actually having sex. Until recently, child
pornography statutes had been interpreted to mean that a minor must be naked or
engaged in explicit sexual activity in order to prosecute. But in January 1995,
the U.S. Supreme Court upheld a decision in Knox vs. U.S., which expanded child
pornography law to include any lascivious display of a minor's genitals, even if
clothed (Sloan and DeCoursey 1995). This precedent spurred the Federal Bureau
of Investigation to launch an inquiry into Klein's campaign even after he had
voluntarily pulled the remaining ads.
On the other side of this controversy, Klein argued that his
campaign had simply been misunderstood. "'The message of the CK Calvin Klein
Jeans current advertising campaign is that young people today, the most media
savvy generation yet, have a real strength of character and independence. They
have very strongly defined lines of what they will and will not do . . . (Klein
in Kaplan 1995)'" Klein contends that because the young people shown in his ads
were simply expressing themselves and were not coerced, the campaign is
perfectly innocent. The ads were meant to "express the spirit, independence and
inner worth of today's young people (Secunda 1995)." Any other message gleaned
from the campaign, Klein said, was unintended.
Whether the ads were misinterpreted or not, the controversy they
generated raised important ethical and legal issues. The First Amendment
guarantees the right to speak, write, and publish freely, without government
interference. However, since Valentine vs. Chrestensen in 1942, in which the
Supreme Court decided that "purely commercial advertising" was not
constitutionally protected, the courts have tangled with how far First Amendment
rights extend to commercial speech. Discussing the Klein case, Larry Flynt,
publisher of Hustler, stated that advertisers and publishers "'should come out
and take a position that free expression is absolute, and the government cannot
and should not have the right to legislate morality (Johnson 1995).'" He went
on to say, "'Having strong legislation to protect children and prevent sexual
exploitation is necessary. But you have to look at the advertising and the
content. It really does not meet the test of obscenity. It does not violate
the Child Protection Act. You are talking about a matter of taste. I just
don't think you can legislate in that area. . . I find it appalling (Johnson
1995).'" A spokesperson for the Magazine Publishers of America agreed with
Flynt's sentiment but less vehemently, "'Some of the magazines that ran the ads
are members of the MPA and some are not. But we support First Amendment rights
to freedom of speech in advertising and the freedom of the press to accept and
run the ads or to refuse them. We are neutral on supporting Calvin Klein either
way, but we do firmly support First Amendment rights (Sloan and DeCoursey
1995).'"
Much of the coverage and discussion of the Klein campaign, in both
the advertising trade journals and popular press, focused on the legality of the
campaign -- did it violate child pornography laws and could it be protected by
the First Amendment? So when the Federal Bureau of Investigation decided to
drop the case saying that it could not prove that any of the models appearing in
the questionable ads were under 18, the discussion also ended. The Justice
Department determined that Calvin Klein could use teens as he had in the ads.
But the more important ethical question was left unanswered. The Klein case
makes clear that advertisers probably can use teenagers' sexuality to sell a
product -- the question is, should they?
The clash between child protection and First Amendment rights is a
conflict between two of our society's most basic beliefs -- that people should
be free to express themselves even if their expressions offend others, and that
children need special safeguards. The complex question of whether advertisers
should portray teens sexually must be answered within the context of current
advertising research, industry regulation, First Amendment rights as they apply
to advertising and teens, and child pornography rulings. Only after reviewing
each of these areas in order to paint the backdrop for this ethical dilemma, can
one examine the societal values on either side of the Calvin Klein campaign and
determine which moral argument is more compelling.
Advertising's Position on Teens as a Market
The Question of Adolescent Maturity
Controversy over the relationship between children and advertising
is not new. However, the debate has generally focused only on children younger
than 12, rather than on all minors, which, legally defined, means everyone under
18 years of age. The Calvin Klein case, which raises the issue of adolescents
in advertising, is complicated by our society's confusion over where teens fall
on the continuum between childhood and adulthood. The two basic beliefs
regarding the maturity of teens appear to have polarized the arguments raised by
Klein's campaign. As the earlier quote from Klein shows, he believes that
teenagers are responsible, intelligent individuals who do not need to be
sheltered from sexual images or media exploitation. And he contends the
campaign merely celebrated teen independence and individuality.
Those on the other side of the fence use child pornography laws to
argue that teens are not emotionally or socially mature enough to handle the
responsibility of sex or to appreciate the dangers of being photographed in
sexually suggestive poses. This group feels that photographing teenagers in
suggestive situations exploits the impressionable group by encouraging or
glamorizing teen sexuality. As portrayals of teen sexuality become more common
in other areas of the media -- from movies to magazine articles -- the question
deserves serious consideration by the advertising community. Unfortunately, the
advertising industry, both its scholars and regulators, offer little guidance on
acceptable portrayals of teens. Instead, a review of scholarly research and
regulatory guidelines indicates that advertisers do not regard adolescents as a
group in need of special consideration.
Scholarly Research
Between 1930 and 1950, our society's perception of children changed
so that they came to be seen as distinct individuals with rights, opinions, and
the power to purchase. As we entered the 1960s, advertisers, seeing this change
as a golden opportunity, began to target children as a new market (Alexander
1993). With the increase in advertising directed toward children came an
increase in public policy concerns about the effects such practices might have.
Not surprisingly, researchers and journalists began writing about the subject
around this time and have continued to do so at an increasing rate (McNeal
1991). In his book, A Bibliography of Research and Writings on Marketing and
Advertising to Children (1991), James McNeal writes that, "Prior to 1960, there
was hardly anything written on the subject of children's consumer behavior.
Throughout the 1960s, interest in the topic of children as a market continued at
a low level." He goes on to say that into the 1990s, with the exception of a
slight drop-off in the early 1980s, children and advertising has become an
increasingly popular topic for scholars and laypeople alike.
But as McNeal points out, most of the research has focused on
children as recipients of advertising messages rather than as participants.
One notable exception is the handful of studies that have looked at gender
stereotypes of children in toy advertising (Ungar 1982, O'Kelly 1974). Not
surprisingly, such studies generally have found that advertising reinforces
society's traditional sex-role stereotypes -- boys play with trucks while girls
play with dolls.
A study by Alexander, which examined how children in magazine
advertisements between 1905 and 1990 were presented, concluded that images of
children in advertising tend to reflect societal values and norms. For
instance, Alexander found that the percentage of advertisements portraying
children has increased over time, indicating that as our society has become more
child-centered, and that the use of children in advertisements for both child
and adult-oriented products has increased. This content analysis found that
changing images of children in advertising reflect our society's changing
conceptualization of children from economic producers to economic consumers
(Alexander 1994).
According to the March of Dimes (1994), the birth rate for girls age
15 to 17 increased 27 percent from 1986 to 1991, and that four percent of all
girls in this age range have had a baby. Therefore, one can hardly argue that
teens are not having sex. Klein could certainly argue that his advertisements
only reflect the current trend toward greater teen sexual activity. However,
the broader pool of literature on media effects suggest that by reflecting
society, the media reinforce and propagate certain images and behavior.
Therefore, many feel that the media have a responsibility to promote moral
standards and avoid harmful images. And because children are especially
vulnerable, we must take care in how they are used in and targeted by
advertising.
Yet advertising scholars have tended to ignore teenagers in studies
addressing such concerns. When adolescents or tweens, the distinct market of
children ages seven to 15, are studied it is generally to determine how they are
socialized as consumers and how to better target them (Hall 1987, Moschis and
Churchill 1978, Moschis and Moore 1979, Keiser 1975). Given the lack of
research on advertising's effects on teenagers, the assumption presumably is
that teens are sophisticated enough to interpret advertising messages and
therefore do not need special consideration. Whether advertising's
self-regulatory boards based their guidelines on current research or intuition,
they also have ignored adolescents.
Children's Advertising Review Unit
As a country founded on a system of free enterprise, the United
States has tended to be lenient in its policies toward advertising. Rather than
legislating good advertising practices, the government has relied on the
industry to regulate itself. Two organizations have acted as the primary police
of the advertising industry, upholding standards for truth and accuracy for the
past 20 years; the National Advertising Division (NAD) of the Council of Better
Business Bureaus (CBBB) and the National Advertising Review Board (NARB), which
was formed by an alliance among the American Advertising Federation, the
American Association of Advertising Agencies, the Association of National
Advertisers, and the CBBB.
In 1974, the NAD added the Children's Advertising Review Unit
(CARU) to "promote truthful, accurate advertising to children which is sensitive
to the special nature of its audience (Council of Better Business Bureaus
1993)." In its Do's and Don'ts In Advertising, the CBBB explains that
"(c)hildren are not simply little adults. Because their view and understanding
of the world is different from that of adults, and their experience in the
market-place is limited, important considerations must be taken into account
when communicating advertising messages to children (Council of Better Business
Bureaus, Inc.1993)." However, the CARU defines children as those under the age
of 12. Therefore, the organizations guidelines would not apply to the Calvin
Klein campaign.
The organization is also unlikely to police Klein-like advertising
because its primary concern, as demonstrated by the above quote, is for children
as an audience. The CARU's guidelines for questionable practices in children's
advertising warn against only two objectionable portrayals of children, neither
of which would apply to the Klein case: "if children are shown using a product
in a way that the average child couldn't (or) if a child or adult is shown doing
something unsafe (Council of Better Business Bureaus, Inc. 1993)." The
guidelines say nothing of potentially distasteful or harmful portrayals of
children as sex objects or in age-inappropriate situations.
While the CARU's guidelines do not directly address the issues
raised by the Calvin Klein campaign, two of the basic principles underlying them
might, if expanded to include teenagers. The first principle presented in the
CBBB's Do's and Don'ts In Advertising begins, "Advertisers should always take
into account the level of knowledge, sophistication and maturity of the audience
to which their message is primarily directed (Council of Better Business
Bureaus, Inc. 1993)." This principle speaks to the need to clearly determine
whether teens are mature enough to receive a campaign's message. Presumably, if
they are not sophisticated enough to receive it, they should not convey it.
The second principle that speaks to the need to take care in how
children are portrayed in advertising reads, "Advertisers are urged to
capitalize on the potential of advertising to influence behavior by developing
advertising that, wherever possible, addresses itself to positive and beneficial
social behavior, such as friendship, kindness, honesty, justice, generosity and
respect for others (Council of Better Business Bureaus, Inc. 1993)." This
principle emphasizes the need for social responsibility when commercially
targeting children. Broadened to include adolescents, it requires one to
clarify and weigh the social values portrayed in the Calvin Klein ads. Do they
depict teen sexuality, as the objectors argued, or do they glorify teen
independence?
Examining the current body of research and the CARU's regulatory
stance offers few insights into how a campaign like Klein's should be handled.
And because the industry is, by and large, left to police itself, it is unlikely
that regulations making it harder to target the lucrative teen market will be
adopted. Instead, advertisers, in failing to address teens as a group needing
special consideration, seem inclined to view teens as mature decision-makers and
leave it at that.
The Legal Issues
Child Pornography
Advertising's regulators and researchers may be unsure about whether
teens need protection, but the child pornography statutes are not. The Child
Protection Act clearly defines child pornography as "a photographic, film, video
or other visual representation
. . . that shows a person who is or is depicted as being under the
age of eighteen years (emphasis added) and is engaged in or is depicted as
engaged in explicit sexual activity, or the dominant characteristic of which is
the depiction, for sexual purposes, of a sexual organ . . . of a person under
the age of eighteen years ("Definition of Child Pornography" 1993)." In terms
of sexual activity, the law generally defines 18 as the age of consent. And
according to the law, "I thought he/she was 19." is not a sufficient excuse. It
is up to the pornographer to take "all reasonable steps to ascertain the age of
that person ("Definition of Child Pornography" 1993)." Where the model is 18 or
older, the pornographer must take steps to ensure that the representations do
not depict him/her as younger than 18. Those found guilty of creating or
publishing child pornography may be sentenced to up to ten years in prison.
As described above, pornography must show a minor engaged in sexual
activity or exposing his/her genitals. Klein's advertising did not go that far;
all models were at least partially clothed. But as explained earlier, a
precedent-setting Pennsylvania case, Knox v. U.S., broadened child pornography
law to include clothed representations of a minor's genitals. In this case, a
graduate student at Penn State University was convicted of receiving through the
mail and possessing three videos depicting girls between 11 and 17 years old who
posed in bathing suits and underwear. As the ruling from the Third Circuit
Court of Appeals explains, based on the Protection of Children Against Sexual
Exploitation Act's definition of child pornography, nudity is not necessary.
Rather, it is the manner in which the minor's genitals are displayed that
determines whether the material is pornographic.
Knox attempts to read a nudity requirement
into a statute which has none. The amended Protection of
Children Against Sexual Exploitation Act criminalizes the
"lascivious exhibition of the genitals or pubic area."
Exhibit
means "to present to view: show, display . . . to show
publicly:
put on display in order to attract notice to what is
interesting
or instructive." The genitals and pubic area of the young
girls
in the Nather tapes were certainly "on display" as the
camera
focused for prolonged time intervals on close-up views of
these
body parts. Additionally, the obvious purpose and
inevitable
effect of the videotape was to "attract notice"
specifically to
the genitalia and pubic area. Applying the plain meaning
of the
word "exhibition" leads to the conclusion that nudity is
not a
prerequisite of the occurrence of exhibition (United States
Court
of Appeal, Third Circuit 1992).
One could certainly argue that at least two of the CK jeans ads
exhibited the clothed pubic regions of the models. And there are a number of
striking similarities between how the court described the videos and the Klein
television commercials. The Knox v. U.S. decision notes, "The tapes contained
numerous vignettes of teenage and preteen females, between ages ten and
seventeen, striking provocative poses for the camera. The children were
obviously being directed by someone off-camera (United States Court of Appeals,
Third Circuit 1992)." Klein's campaign also contained pictures of young people
(it is unclear how many of the Klein models were under 18) striking poses at the
direction of the photographer.
It is also clear that the campaign, like all advertising, was meant
to attract attention. Sex is often used to do this -- just look at the car
advertisement with a sexy woman draped on the hood of a sports car or beer
commercials with bikini-clad women springing out of coolers. But the courts
would have difficulty prosecuting Klein. Given that the overt purpose of the
ads was to sell jeans, it is hard to argue that the intent was lascivious, that
Klein meant to arouse the viewer in the same way that pornographers means to
arouse. Klein explains, "'the real story is to try to let people know what the
product's all about. It's true in everything we advertise. . . (The ads) convey
a strong image of the product. . . So, my point is that I advertise it (the
product), for sure I'm going to show it to its greatest advantage. And I'm
going to do it on someone who has an excellent body, someone who's sexy, male or
female, doesn't matter (Kaplan 1995).'"
Although Klein clearly skated close to the edge of child pornography
law, the Justice Department decided that it did not have a case against him.
Deputy Assistant Attorney General Kevin DiGregory explained that, "'The Child
Exploitation & Obscenity Section of the Criminal Division has independently
verified that minors were not used as models in the particular photographs that
raised questions regarding the applicability of the federal child pornography
statutes (Sloan and DeCoursey 1995).'" Amy Adler, an attorney well-versed in
First Amendment and child pornography cases, apparently believes it may not have
been that clear-cut. She stated, "'It was a far-fetched case to begin with, so
maybe Justice is saying they couldn't prove any of the models were underage just
to save face (Sloan and DeCoursey 1995).'"
The First Amendment
Klein did not violate the law, but does that mean the ads are
thereby protected under the Constitution? Not necessarily. Although the First
Amendment guards freedom of speech and of the press, advertising, because of its
commercial nature, has been more closely regulated than other forms of
communication. There are, for instance, restrictions on the amount and
placement of television advertising directed toward children. The general rule
in advertising regulation has been to balance the needs of the advertiser with
the needs of the consumer.
One of the most important, precedent-setting cases regarding
advertising restrictions is Central Hudson Gas & Electric Corp v. Public Service
Commission of New York. In the late 1970s, during the fuel crisis, the New York
Public Service Commission ordered Central Hudson to stop promoting electric
appliances because they require petroleum to operate and thus their use would
worsen the fuel shortage. In an eight-to-one decision, the Supreme Court ruled
that such a ban was unconstitutional. In coming to its decision, the court
devised a four-pronged test to determine when commercial speech should be
banned. Justice Lewis Powell wrote:
In commercial speech cases, then, a
four-part analysis has developed. At the outset, we must
determine whether the expression is protected by the First
Amendment. For commercial speech to come within that
provision,
it at least must concern lawful activity and must not be
misleading. Next, we ask whether the asserted governmental
interest is substantial. If both inquiries yield positive
answers, we must determine whether the regulation directly
advances the government interest asserted, and whether it
is not
more extensive than necessary to serve that interest
(Teeter, et.
al in Hovland and Wilcox 1989).
In essence, this decision says that advertising does have
constitutional protection but only to a limited extent. According to Central
Hudson, advertising can be banned if doing so serves the government and thus
society, and if the ban is not so far-reaching as to be unreasonable. The
four-pronged test has been used to justify banning casino advertising to local
residents of Puerto Rico. The thinking in that case was that gambling, although
legal, posed a threat to local residents of Puerto Rico who had continuous
access to casinos. Therefore, advertising was restricted to tourists (Hovland
and Wilcox 1989). Central Hudson also provides grounds for President Bill
Clinton's proposed restrictions on cigarette advertising. It could be argued
that the proposals would lower health care costs by reducing the number of
smoking-related deaths in the United States and are therefore constitutionally
sound.
In more recent years, Supreme Court decisions that have referenced
Central Hudson have both weakened and expanded First Amendment protection of
advertising. In Board of Trustees v. Fox, decided in 1989, the Supreme Court
reinterpreted the fourth prong of Central Hudson to say that the restriction of
commercial speech need not be the least restrictive, it need only be
"reasonable"(Hovland 1995). According to an article appearing in the Annual
Survey of American Law, this decision "opens the door to the possibility that
constitiutional protection will be denied completely in commercial speech cases
(Blechner in Hovland 1995)." Yet two later decisions once again tipped the
scales in favor of advertising. Cicinnati v. Discovery Network and Edenfield v.
Fane reinterpreted the third prong of Central Husdon, requiring that proof of
government interest be demonstrable. The decision in Edenfield expanded the
third prong by saying that the government's interest must be materially as well
as directly served by restriction (Hovland 1995). The changing interpretations
of Central Hudson indicate the courts are continually struggling with where to
draw the line on commercial speech.
Even so, advertisers still face more stringent regulation than
newspaper writers and editors, magazine contributors, and other members of the
communications field. Were it determined that it was in the public's best
interest and not too extreme, the Klein campaign could have been banned. That,
however, was not necessary because Klein chose to prematurely end the campaign.
It also was not likely to happen. Attorney Amy Adler said shortly after the
Justice Department began its investigation, "'These ads may be offensive but I
would think they are protected speech (Sloan and DeCoursey 1995).'"
Advertisers are not the only ones whose speech can be restricted.
Another group that often receives limited First Amendment protection is teens.
When looking at how the First Amendment has been applied to adolescents, we once
again encounter the difficulty of distinguishing teens from adults. David
Moshman, writing in Human Development, discusses two Supreme Court decisions
that have sent very different messages regarding teen maturity. In Hazelwood v.
Kuhlmeier, a 1988 decision, the court found that a high school principal had
the authority to censor the school's student newspaper. The court stated one
sufficient reason for editing or omitting articles was if the material was
deemed "'unsuitable for immature audiences (Moshman 1993).'" Among the topics
that the principal had censored were divorce and teen pregnancy.
Two years later in Board of Education v. Mergens, teens were found
to be mature enough to distinguish between school-sponsored and endorsed groups
and extracurricular activities. The question arose when a group of Christian
students requested permission to start a Bible study club. School officials
refused, saying that they feared others would think the school supported one
particular religious belief to the exclusion of others. However, the Supreme
Court determined that "'secondary school students are mature enough and are
likely to understand that a school does not endorse or support student speech
that it merely permits on a nondiscriminatory basis (Moshman 1993).'" These two
decisions are in direct contrast to one another and, as Moshman points out,
raise the question of whether teens are mature. After a review of the relevant
research, he concludes that the cognitive and reasoning abilities of adolescents
are similar enough to adults to warrant giving them intellectual freedom and
free expression the same as any adult would receive. Therefore, he believes in
both cases the students should not have been censored by the schools.
However, Charles Helwig, in a rebuttal to Moshman, contends that
social and emotional influences, such as peer pressure, may interfere more with
adolescents' abilities to reason than they would with adult reasoning. He
writes, "How these emotional and functional aspects of psychological maturity
intersect with reasoning abilities in adolescence is, at present, far from fully
understood (Helwig 1993)." He goes on to argue that even if it were determined
that adolescents are mature individuals, restriction of personal rights may
still be warranted. "Rights and freedom are never absolute and sometimes need to
be balanced against other concerns, including prevention of harm, the attainment
of important social goals, and the rights of others in situations in which
rights conflict (Helwig 1993)." Here we find support for the Supreme Court's
thinking in Hazelwood v. Kuhlmeier. If applied universally, adults should
always have the right to suppress adolescent expression.
Obviously there is little agreement from these four corners --
advertising researchers, advertising regulators, the First Amendment, and child
pornography statutes -- about whether teens are mature enough to independently
choose whether to pose for a suggestive advertising campaign. But reviewing the
letter of the law and regulatory guidelines gives some insight into how our
society prioritizes its values. Advertising is not valued to the same extent
that other forms of free expression are. And children, even teenagers, are
considered in need of special care. Sometimes, providing for them and
sheltering them requires restricting their freedom as in the Hazelwood v.
Kuhlmeier case. This would suggest that a campaign like Klein's might not be
protected by the First Amendment and should be regulated. Looking more closely
at the values apparent on either side of the debate further illustrates that a
compelling argument exists for regulating such advertising.
The Values Inherent to Each Side
In Support of the Calvin Klein Campaign: The First Amendment Argument
The founders of the United States believed so strongly that in order
to have a free society there must be free expression and discussion of ideas
that they added it to the Constitution. The First Amendment to the Constitution
states:
Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the
press; or
the right of the people peaceably to assemble, and to
petition
the Government for a redress of grievances.
The First Amendment is based on the belief that people are reasoned.
The best way to build and maintain a strong society, then, is to allow all
voices to be heard. This includes unpopular and even scandalous ideas.
Whenever First Amendment rights are questioned, opponents to
censorship herald the coming of the Orwellian Thought Police, who dictate what
people are allowed to think and say. For instance, in reaction to the Hazelwood
v. Kuhlmeier ruling, Jim Senter and Jeanne Lenzer of the National Child Rights
Alliance wrote, "It seems that the Orwellian year of 1984 has crept into our
American culture with such stealth that we accept without flinching actions
smacking of Big Brotherism and the Thought Police (1991)." Justice William
Brennan Jr., in writing the dissenting opinion, called the decision "thought
control in the high school (Lenzer and Senter 1991)."
Valued in this argument are honesty and a free exchange of ideas.
Given the number of teens experimenting with sex, one could argue that it is not
be realistic or helpful to avoid images like those in the Klein campaign.
Instead, by addressing teen sexuality directly, we may hope to create a more
open environment in which fewer teens will have uninformed or unprotected sex.
Lenzer and Senter warn of the danger in restricting adolescents' speech. "In
the face of the stunning numbers of children being subjected to violence, rape
and mayhem in their homes the State has elected to side with the Family Dictum,
'Thou shalt not be aware.' The message is deadly. . . Youth today face violence
-- not only on the streets but in their homes and schools. They face the
ravages of alcoholic and abusive parents, the pain of sexual abuse which often
turns into the promiscuous youth who [get] pregnant, or impregnate others
(1991)." Those on the side of First Amendment protection are likely, then, to
argue that Klein's advertising is protected as long as the teens involved were
freely expressing themselves and were not coerced in any way.
Where advertising is involved, this same group generally contends
that, if the product or service advertised is legal, then the advertiser has a
right to tell people about it and the public has a right to know. For
instance, a recent editorial published in Advertising Age took issue with
decisions from the federal district court and U.S. circuit court that uphold
bans on outdoor tobacco and alcohol advertising in residential areas of
Baltimore. Referring to the Central Hudson precedent, the editorial stated,
"This is dangerous thinking if the First Amendment is to do what it is meant to
do. It is in the Bill of Rights to protect unpopular speech, and now speech for
unpopular but legal products (Advertising Age 1995)."
While there is definite reason to fear the erosion of the First
Amendment, it has long been understood that the Bill of Rights was not written
with commercial speech in mind or to protect all speech absolutely. In a text
on media law, Ralph Holsinger suggests that the ideas of Sir William Blackstone
influenced the thinking of the founders in writing the Bill of Rights.
Blackstone wrote,
The liberty of the press is indeed essential
to the nature of a free state; but this consists in laying
no
previous restraints upon publications, and not in freedom
from
censure for criminal matter when published. Every freeman
has an
undoubted right to lay what sentiments he pleases before
the
public: to forbid this is to destroy the freedom of the
press:
but if he publishes what is improper, mischievous, or
illegal, he
must take the consequences of his own temerity (Blackstone
in
Holsinger 1987)."
The Supreme Court has tended to accept that the First Amendment does
not protect all speech and that, in cases where restriction serves the greater
good, it is appropriate. And the Supreme Court has determined that commercial
speech, due to its basic nature as a business tool rather than political or
social informer, should receive less protection. Justice Sandra Day O'Connor,
writing the majority opinion in Florida Bar v. Went For It, Inc., explained the
Court's decision to limit direct mail advertising by lawyers by quoting previous
decisions regarding advertising. "We have always been careful to distinguish
commercial speech from speech at the First Amendment's core. -- '(C)ommercial
speech (enjoys) a limited measure of protection, commensurate with its
subordinate position in the scale of First Amendment value (emphasis added),'
and is subject to 'modes of regulation that might be impermissible in the realm
of noncommercial expression (O'Connor 1995).'"
Klein's own explanation of his intent in creating the campaign
illustrates why commercial speech is afforded less freedom. In an interview for
New York magazine, Klein commented, "'In any case we're creating advertising.
I'm not making social statements. And I'm speaking to an audience that I would
think would get it (Kaplan 1995).'" This quote gets at the real reason the
Klein agency created the ads showing teenagers in sexually suggestive situations
and poses -- not to celebrate the strength of today's youth, but to sell them
jeans. Anyone in advertising knows that to attract and hold the target
audience, its members must be able to see themselves represented in the
advertisements, whether realistically or as they hope to be. Klein's campaign
does that. It titillates teens with sex and allows them to see themselves as
sophisticated and worldly, whether they are or not. In doing so, Klein is not
commenting on or creating teen behavior, he is merely reflecting it in the hopes
of making a sale. Because the majority of commercial speech, with the exception
of public service announcements and not-for-profit advertising, does not set out
to advance the societal well-being, it has not earned full protection under the
First Amendment.
In Opposition to the Calvin Klein Campaign: The Child Protection
Argument
Based on the Justice Department's findings, Klein did not violate
child pornography laws. However, the public's reaction to his campaign
indicates that he violated the moral standards of many. These same moral
standards are at the heart of the child pornography statutes. The Knox
decision, as written by Judge Cowen, clearly explains the thinking behind child
pornography laws and the Court's feeling that they are essential if we are to
protect our children from sexual exploitation:
The Supreme Court allows the states and
Congress greater leeway to regulate and proscribe
pornography
that depicts minors as distinguished from adults since the
harmful effects suffered by a child are palpably more
severe.
The Court relaxes the Miller obscenity test when
pornographic
material portrays minors since the government's interest in
'safeguarding the physical and psychological well-being of
a
minor' is 'compelling.' The use of children as subjects of
pornographic material is harmful to the physiological,
emotional
and mental health of the child. The psychological effect
of
visually recording the sexual exploitation of a child is
devastating. . .Since the child's image is permanently
recorded,
the pornography may haunt him or her for a lifetime because
the
child will be aware that the offensive photograph or film
is
circulating through the masses (United States Court of
Appeals,
Third Circuit 1992).
Quoting an earlier Court decision, Judge Cowen went on to explain the
necessary distinction between children and adults. While adults can choose to
pose for pornography, children cannot.
(Child pornography) is the affront to the
dignity and privacy of the child and the invasion of the
child's
vulnerability: "Human dignity is offended by the
pornographer.
American law does not protect all human dignity; legally,
an
adult can consent to its diminishment. When a child is
made the
target of the pornographer-photographer, the statute will
not
suffer the insult to the human spirit, that the child
should be
treated as a thing (United States Court of Appeals, Third
Circuit
1992)."
Child pornography is not the only area in which the government feels
it is necessary to step in and protect adolescents. Child labor laws enacted by
the Fair Labor Standards Act (FLSA) of 1938, for instance, prescribe when and
where people under 18 years of age may work. The FLSA states that children
under 14 years old may only work in their parent's place of business, a
residential setting, or show business. Those between 14 and 17 are not
permitted to work in professions deemed to be "Hazardous Occupations." And
those 14 to 15 years old are restricted in the number of hours they may work.
(Beyer 1995) These laws were enacted to protect children from exploitation by
employers "exactly because they are less experienced, less costly, and less
complaining employees (Beyer 1995)."
Conclusion
The evidence overwhelmingly demonstrates that our society feels it
must protect adolescents -- from their own freedom of expression as seen in
Hazelwood v. Kuhlmeier, from sexual exploitation at the hands of a pornographer,
and from exploitative employers. Although there is some uncertainty as to the
ages of Klein's models, the overall effect was undeniably to portray them as
young and sexy. Given how narrowly Klein's advertising appeared to stay within
the bounds of legality, and the public outcry against the campaign, the
compelling argument is that advertisers should not use teens' sexuality to sell.
Furthermore, the courts have already determined that freedom of expression is
not a sufficient counter-argument when the welfare of children is involved.
The difficulty comes in regulating what society deems as
unacceptable behavior by advertisers. Because advertising models fall under the
heading of performers they are not protected by child labor laws. And even
suggestive advertising like Klein's does not constitute pornography and so
cannot be touched by the child pornography laws. Therefore, the best hope for
policing portrayals of teens in advertising is that the advertising community
will adopt industry-wide standards that outline appropriate uses of adolescents.
Due to the difficulty in actually regulating taste and age-appropriateness, it
may be impractical to set strict guidelines and then try to enforce them.
However, industry leaders can speak out and send a clear message that harmful
images of children are disdained. In doing so, they may press advertisers to
think twice about the messages they send to youngsters. If advertising is to
grow in the esteem of the public and the courts, its practitioners must be as
concerned about the social value of a message as they are about its selling
power.
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Advertising Age,
(September 4), 35.
Alexander, Victoria D. (1994), "The Image of Children in Magazine
Advertisements
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Beyer, Dorianne (1995), "Understanding and Applying Child Labor Laws
to Today's
School-to-Work Transition Programs,"
http://vocserve.berkeley.edu/CenterFocus/
cf8.html.
Brady, James (1995), "Fueling, feeling the heat," Advertising Age,
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Council of Better Business Bureaus, Inc. (1992), "The Children's
Advertising Review
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Advertising Review
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Helwig, Charles C. (1993), "Commentary," Human Development, 36 (1),
41-44.
Holsinger, Ralph L. (1987), Media Law, New York: Random House.
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Lincolnwood, Illinois: NTC Business Books.
Johnson, Bradley (1995), "Flynt sees dangers in federal action
against CK ads,"
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Kaplan, James (1995), "The Triumph of Calvinism," New York,
(September 18), 46-57,
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Lenzer, Jeanne M. and Jim Senter (1991), "Free Speech Denied Youth,"
http://www.ai.mit.edu/people/ellens/NCRA/free.html.
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McNeal, James U. (1991), A Bibliography of Research and Writings on
Marketing and
Advertising to Children, New York: Lexington Books.
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O'Connor, Sandra Day (1995), Florida Bar v. Went For It,
[log in to unmask] EDU.
Sachs, Andrea (1995), "Kiddie porn or bad taste?," Advertising Age,
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Secunda, Eugene (1995), "Calvin Klein, Levi's ads? Well, that's show
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rap from the feds," Advertising Age, (November 20), 25.
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977 F.2d 815 (3rd Cir. 1992)
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