Ethical Limitations on the State's Use of Arational Persuasion

Date01 July 2016
Published date01 July 2016
DOIhttp://doi.org/10.1111/lapo.12059
Ethical Limitations on the State’s
Use of Arational Persuasion
NADIA N. SAWICKI
Policy makers frequently use arational appeals and nudges—such as those relying on emotion,
cognitive biases, and subliminal messaging—to persuade citizens to adopt behaviors that support
public goals. However, these communication tactics have been widely criticized for relying on
arational triggers rather than reasoned argument. This article develops a fuller account of the
nonconsequentialist objection to arational persuasion by state actors, focusing on theories of
decisional autonomy and metadecisional voluntariness. The article concludes by proposing
ethically justifiable limitations on state communications that should be compelling to both critics
and advocates of arational persuasion.
INTRODUCTION
In order to achieve its policy objectives, the government must speak. Policy makers recog-
nize, however, that the public is not easily swayed by rational appeals to dry facts. Thus,
state actors put significant energy into developing communication campaigns that will
grab viewers’ attention, often using arational triggers—like emotional appeals, dramatic
graphic images, or reliance on cognitive biases—to persuade citizens to act in support of
public goals. State communications on matters of medicine and public health are particu-
larly notable in this regard, arising in contexts as varied as tobacco labeling, nutritional
recommendations, informed consent requirements, and disease prevention. Such meas-
ures have found increased support since the 2008 publication of Richard Thaler and Cass
Sunstein’s Nudge, which advocates the use of libertarian paternalist nudges to further
public policy (Thaler and Sunstein 2008).
1
A key feature of Thaler and Sunstein’s nudge
model is its recognition that human decision making is marred by bounded rationality
and mistakes in reasoning; in taking advantage of such cognitive errors, many nudges can
be viewed as examples of arational persuasion.
While many commentators agree that some forms of governmental persuasion are ethi-
cally problematic, it can be difficult to identify the theoretical basis for their objections.
Moreover, these objections are not voiced consistently. For example, whether a person
objects to graphic tobacco labeling laws typically depends more on her opinions about
smoking than her perspective on government persuasion generally. Indeed, many exam-
ples of arational appeals—emotionally compelling campaigns about environmental
The research for this article was conducted during a semester’s research leave generously provided by Loyola
University Chicago School of Law, and supported by the American Bar Foundation’s Visiting Scholar pro-
gram and the Wake Forest Junior Scholars in Bioethics Workshop Program.
Address correspondence to: Nadia N. Sawicki, Professor, Beazley Institute for Health Law and Policy,
Loyola University Chicago School of Law, 25 E. Pearson St., Chicago, IL 60611, USA; Telephone: 312-915-
8555; E-mail: nsawicki@luc.edu; Fax: 312-915-6212.
LAW & POLICY, Vol. 38, No. 3, July 2016 ISSN 0265–8240
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C2016 The Author
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C2016 The University of Denver/Colorado Seminary
doi: 10.1111/lapo.12059
protection and military recruiting, for example—are generally viewed positively, perhaps
because public support for these issues is widespread. However, from an ethical perspec-
tive, the legitimacy of such campaigns depends not only on their substantive aims, but
also their methods. Surely, even an attempt to persuade the public to support an uncon-
troverted good may be ethically troubling if it is made using techniques that are deceptive,
coercive, or otherwise autonomy-violating. Unfortunately, such normative arguments
have to date been underdeveloped because of undue focus on the outcomes of persuasive
appeals.
In this article, I develop a nonconsequentialist argument for limiting, but not prohibit-
ing, the state’s use of nudges and other arational methods of persuasion in health-related
contexts and beyond. In examining objections to the use of arational persuasion by gov-
ernment actors, I conclude that the strongest basis for justifying restrictions on such per-
suasion is grounded in theories of decisional autonomy and metadecisional voluntariness,
which I define as an actor’s ability to structure the procedural conditions under which she
makes decisions. I then evaluate claims that some arational persuasive techniques may be
autonomy-enhancing, and use this analysis to identify possible content-neutral limita-
tions on the use of persuasive government appeals.
Ultimately, I conclude that the state’s use of arational persuasive techniques may be
autonomy-enhancing and therefore ethically permissible in two contexts. The first is
where a persuasive appeal is used to trigger attention or provide information for a deci-
sion that the person has no choice but to make, and is provided in a form that is to some
degree avoidable—for example, if it is nongraphic, obvious as to its persuasive intent, and
presented at an early point in the decision-making process. The second is where a persua-
sive appeal is used to allow a person whose autonomy is otherwise compromised (due to
internal constraints like cognitive errors, for example) to make a substantive decision that
comports with what her true interests would be were she acting autonomously—this,
however, requires that the state demonstrate that the person’s autonomy is truly compro-
mised and cannot be restored through rational means, and that the persuasive appeal is
designed to be autonomy-enhancing in the long run. These conclusions, notably, call into
question many of the nudging techniques for public health improvement that have
received increased attention since the publication of Nudge.
While recognizing that state actions, in most cases, are ultimately driven by outcomes
rather than by nonconsequentialist ethical considerations, it is my hope that the analysis
presented here will elucidate this important normative argument and help guide policy
makers in developing persuasive communication campaigns, particularly in the contexts
of medicine and public health.
CATEGORIZING PERSUASIVE APPEALS AND DEFINING ARATIONAL PERSUASION
A vast array of literature tries to define the distinctions between persuasion, manipula-
tion, and coercion, but definitions can vary widely. Coercion, commonly understood to
be the most ethically problematic of the three, is typically understood to be the use of “a
credible and severe threat of harm or force” to direct an actor’s decision making (Beau-
champ and Childress 2008, 133). The boundaries of manipulation and persuasion, how-
ever, are much more difficult to draw. Manipulation is commonly understood as an
attempt to “sway people to do what the manipulator wants by means other than coercion
or persuasion,” such as through deception, misdirection, the withholding of information,
or other mechanisms a rational actor would not support (ibid., 133-34). Persuasion, in
contrast, is not necessarily aimed at promoting the interests of the persuader exclusively,
212 LAW & POLICY July 2016
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C2016 The Author
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