When the market forces the media to remove a spokesperson or abandon a message, small minds decry it as a First Amendment violation. I bring this up in a marketing blog because marketers need to be First Amendment-savvy. They do, after all, avail themselves of the same media used by the entertainment and news industries.

Respected scientist and author Dr. Michael Shermer (who was kind enough to write the Foreword to my book) recently explained the issue so well, I shall defer to him. I reproduce his comments in their entirety below. Click here to visit Shermer’s blog to read this and other insightful entries.

The Free Exercise of Stupidity: 
Dr. Laura, the Ground Zero Mosque, and the 1st Amendment
by Michael Shermer
Aug 24 2010

Recently, two of the biggest media story brouhahas were Dr. Laura’s N-word gaff and the Ground Zero mosque, both of which commentators insist are First Amendment issues. They are not. Here’s why. First, let’s review the First…

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.

(Most people forget that there are actually five freedoms protected in the First Amendment: religion, speech, press, assembly, petition.)

Laura Schlessinger says that she is quitting her job as the biggest female radio show host in the galaxy because, she told Larry King: “I want to regain my First Amendment rights. I want to be able to say what is on my mind.” Sarah Palin chimed in on Twitter that Schlessinger’s First Amendment rights “ceased 2exist thx 2activists trying 2silence her.”

Wrong. The First Amendment applies only to what the government can and cannot do. No government agency is demanding that Dr. Laura step down. No laws are being passed to silence radio talk show hosts (at least not yet—recall last year’s cultural scuffle over whether liberals should be given equal time on all radio shows, including conservative talk radio). This is not a First Amendment issue in the least. Dr. Laura is free to exercise her First Amendment rights to say what is on her mind, including her stupefyingly ignorant opinion that blacks are being hypersensitive when called the N-word by whites. In turn, blacks, whites, and anyone else not from another planet are free to remind Dr. Laura what has transpired over the past half century here on Earth since she’s been away on Mars.

The Ground Zero Mosque issue is equally clearly not a First Amendment issue because, near as I can figure, it is not being built on government land, it is not being funded by tax-payers dollars, and it is not a public building. To that extent, it’s none of the government’s business what the owners and financers of the building want to do with their private property, so they are free to build a mosque near Ground Zero (it’s two blocks away, by the way, not “at” Ground Zero), and by the 4th right of the First Amendment, people are free to peacefully assemble to remind said private land holders and building builders what happened in that neighborhood a scant nine years ago next month.

The government is not—and never should be—in the business of regulating stupidity or making laws respecting the free exercise thereof.

* * *

If you appreciate Dr. Shermer’s work in promoting science and critical thinking, check out and consider joining and supporting the Skeptics Society. Shermer is president and founder. I have been a card-carrying member for better than six years.

A brief survey of  attorney advertising creates the impression that the Bar requires law firms to brand themselves as either stuffed shirts or ambulance chasers. 

Good news: there is no such requirement. There are plenty of other brands—respectable ones—available to the legal profession. 

This is true for all practice areas, including bankruptcy, class action, malpractice and personal injury. Let’s not pretend there are no spurious cases, but let’s acknowledge the legitimate ones, too. And legitimate cases can do more than enrich plaintiffs and attorneys. They can perform a service, often halting abusive practices that law enforcement typically fails to address.

So there is a place, even a need, for solid attorney advertising. But sadly, many a good firm, fearful that advertising equals stuffiness or sliminess, opts to rely on Word Of Mouth instead. WOM may be the most credible form of advertising, but it is also the slowest. You can go broke waiting for it to perform.

If fear of the stuffed-shirt/ambulance-chaser dichotomy has kept your law firm from marketing, I’d suggest thinking a little harder. For now, set aside how you want to come across. Instead, begin with a look at the kind of client you wish to attract. That’s where you should aim your approach. If you’re not looking for snobs or greedy dirtbags, there is no reason to run advertising that appeals to such. When you truly aim your messaging at the market you wish to attract, the problem of “how you come across” usually takes care of itself. 

I’d also suggest avoiding any advertising agency that thinks wild creativity is the solution to every marketing problem. You’ll be getting off easy if they only waste your money. More likely, they will also make you look silly. Instead, find an agency that understands the power of substance and clarity.

One more thing about working with an ad agency. Since a good deal of lawyering entails writing, many attorneys quite naturally fancy themselves writers. This can lead to obsessive editing or even rewriting. (Examples: “The word free is unprofessional. Let’s say without charge.” Or, “Professionals don’t use contractions.” Or, my personal favorite, “An English teacher would mark you down for using a preposition to end a sentence with.”) Presumably, you hire an ad agency because they can speak to your market better than you would do it yourself. If you don’t have confidence in them to do that, you have the wrong agency. (Or, you’re an awful client. For more on this, click here to read my column in Deliver magazine, “Why Clients Get the Work They Deserve.”)

Legal advertising is a strong interest area for me. I have advertised law firms I respect, and I have declined law firms I don’t. And I appreciate the attorneys I have retained to help me avoid getting into trouble, to ensure contracts were fair to all parties, to protect me from slimeball attorneys hired by someone else and, once, to represent me as a plaintiff in a malpractice action. I know, first-hand, the value of a good law firm. The public deserves to hear from them.

—Steve Cuno

When a local paper hired a friend to write concert reviews, he bought a thesaurus. “I need some big words to make me sound smart,” he said. My advice to him, as it is to any would-be writer, was: stay far away from that thesaurus.

Good writing isn’t about impressing people with big or little-known words. It’s about communicating. Short and simple always communicates with more power than long and complex. 

Take that last paragraph. I could have written: Effective written communication eschews contriving to flaunt one’s abundant lexicon. A succinct, elementary endeavor invariably fosters more forceful intercourse than prolixity and intricacy. 

Do not fall for the arrogant saw that you must aim at an eighth grade reading level. I don’t even know how to judge that, and neither do you. Simply aim for getting concepts into heads with as little work as possible on the part of the reader. This has nothing to do with how smart the reader is. It has to do with the fact that even the stuffiest Ph.D. would rather glide through an easy read than slog through a needlessly challenging one.

Using a thesaurus entails a couple of other risks. There is a danger of not quite getting the use of the wrong right. A thesaurus may suggest disingenuous instead of sneaky, but they are not quite the same thing. There is also a danger of inserting a word that is out of character from its surrounding text. For instance, the dog barked at the burglar works a little better than the dog vocalized at the burglar. For both reasons, my 10th grade Honors English teacher drilled into us 10 vocabulary words per week, yet warned when giving us a writing assignment, “If you use so much as one vocabulary word, you will receive an automatic F.” His name was Harry Walker, and he was a great teacher. If you went to Reno High way back when, you knew him, or at least of him.

There is nothing wrong with growing and using your vocabulary. But for writing, seek the best word, not the showiest. And don’t try to use words outside your normal reach.

There is one legitimate use for a thesaurus: when the right word is on the tip of your tongue, but you can’t quite get to it. In that case, by all means grab a thesaurus and hunt it down.

(I can’t resist adding this anecdote, written by a former bookstore employee, that appeared in Writer”s Digest some 30 years ago. A customer told the author that her son needed a specific dinosaur book for school. Of course, you have already guessed the outcome. After searching the Natural History section, the employee realized that the child had requested a thesaurus.)

—Steve Cuno

For the first time, I used the feedback feature of my Amazon.com account to complain. A “like new” book, supplied through them by TextbooksRUs.com, had arrived looking not-so-new to me.

Less than 24 hours later, this note came from TextbooksRUs.com: “I am very sorry to hear that you received an item that does not meet your expected standards. In effort to extend our regrets I am issuing you a full refund, and you are welcome to keep the item. I apologize for the discrepancy and appreciate you contacting us. ” Amazon emailed me a refund notice as well.

Books are my vice. After the necessities of life, they are my biggest expense. I am the sort of customer that Amazon and TextbooksRUs would want to keep. And here’s the funny thing. Thanks to the prompt and utterly cool way they responded to my complaint, I am more impressed with both Amazon and TextbooksRUs than I would have been if the book had arrived in pristine condition in the first place.

—Steve Cuno

The server said, “If you’ll call the toll-free number on your receipt and take a brief survey, you might win a free dessert.” I asked how many restaurants there were in this national chain, how many total receipts they handed out daily and, by contrast, how many free desserts they awarded. After weighing the answers, I said, “It seems that my odds of winning the dessert will increase only infinitesimally if I take the survey. Statistically speaking, I could skip the survey and attain the same result.” 

OK, so I was being a brat, but the server laughed with me. If she was really thinking, “What an ass,” fair enough.

Some marketing observations:

1. When it comes to dreams of riches, few people let silly things like probability and chance get in the way. That’s why sweepstakes work and casinos make money. The free dessert prize will draw fewer numbers than the average grandiose sweepstakes prize, but in terms of economics (restaurant margins being slim), I suspect it works out about right.

2. In order to avoid an illegal gambling charge, sweepstakes cannot require you to make a purchase in order to participate. The restaurant’s tactic seems to exploit a loophole. You are, after all, invited to participate only after you’ve bought and paid for your lunch.

3. You have to wonder if customers who take the restaurant’s survey are representative. Callers may skew towards: people who really like dessert; greedy people looking for something for nothing who enter everything; angry people who want to vent (usually more motivated to call than happy and neutral people); and bored people with nothing better to do.

4. The most productive incentive offers reward every purchaser. For that reason (and because sweepstakes entail a legal morass), we steer direct response clients away from contests and toward a free gift* for every purchaser instead. (*Yes, “free gift.” I know it’s redundant. I use it because it sells more than, simply, “gift.” Apologies to your inner grammarian.)

—Steve Cuno

Swiss bank UBS AG has a new ad campaign. The content shows what the bank is doing to identify and fix the problems leading to its current state of disrepair, in order to stabilize and to once again deserve trust. Their new slogan sums up, “We will not rest.” 

I have no way of evaluating the veracity of UBS AG’s claim, but I like the sound of it. Admitting problems and detailing plans to fix them is always a better strategy than sweeping problems under a rug woven of denial and empty boasts. By contrast, AIG attempted the latter tack when, on the eve of their demise, they approved an ad campaign with the disingenuous slogan, “The strength to be there.”

For a positive example, consider a decades-old incident in which Chrysler Corporation was caught resetting odometers to zero after test-driving new vehicles. Then-chairman Lee Iacocca publicly admitted to and apologized for the practice. Chrysler would continue testing vehicles, he said, because that’s a good idea; but they would cease resetting odometers because, he admitted, that was a bad one. The incident ebbed as fast as it arose. I suggest that was partly due to the fact that Iacocca addressed it with candor instead of subterfuge.

—Steve Cuno

Perhaps you have noticed, as I have, that advertising for Halloween decorations and costumes has begun. You may have also noticed that it is yet but mid-August and that, on most calendars, Halloween occurs on the last day of October.

I for one am pleased. Spending helps end recessions. If advertising helps spending along, even if it means advertising Halloween products now, then full speed ahead. If it’ll help, I’m all for starting ads this month for Valentines and Fathers Day while we’re at it.

—Steve Cuno

Attendees of the USPS Innovation Symposium urged the USPS to go digital. As reported in DM News: “Attendees recommended the USPS offer electronic services similar to those of Deutsche Post, which is building a trusted platform for businesses and consumers to conduct electronic business. Other customers suggested the USPS offer a PayPal-type service, building off its reputation as a trusted brand to offer secure online bill presentation and payments. Others said the USPS should create secure e-mail addresses linked to physical addresses, which would open the door to a host of hybrid mail services.”

Meanwhile, the USPS has struck a deal with Office Depot. Now you don’t have to go to the Post Office for Priority and Express Mail. You can access those services at any of Office Depot’s 1100 stores.

—Steve Cuno

American newspapers were the original news medium. They weren’t businesses then. They were the voice of self-appointed watchdogs who published as they felt moved. King George getting out of hand? Run the presses. Nothing going on? Leave ’em off.

Today’s news media are businesses. To survive, they must generate audiences large and suitable enough to attract advertising dollars. They do this by publishing or airing according to a schedule, rather than as needed, and by giving the market what it wants to consume. This last point is crucial. Any sense of mission—be it watchdog or other—is subject to market demands. A mission at odds with ratings will necessitate either compromising the mission in order to survive, or going out of business. (Unless, of course, a news medium happens to have unlimited funds of its own, profitability be damned. Last count, not too many were in this category.)

Which means that, despite what you’d like to think, chances are your (or, in fairness, my) favorite news source isn’t your favorite because it’s unbiased and balanced. And it may not be as committed to your point of view as it would have you think. More likely, enough people see the world your way to make it profitable for that news source to give you the news the way you are most apt to embrace it. If you and the masses who think like you suddenly and permanently change your perspective, you can bet your favorite news source will adapt rather than fight you.

These days, the effects of markets on the news media are hard to miss. The low cost of distributing information via the Internet has taken its toll on costlier media, to wit, broadcast and print. With viewers and subscribers down, ad revenues have dropped. Thus these media have been forced to make cuts. And what do they cut first? Not advice, sports or entertainment. These still draw. No, they cut investigative reporting—because the public doesn’t demand sound information. Illustrations abound. Half of U.S. citizens still believe that Saddam Hussein was a coconspirator in the 9/11 attacks. Most cannot name even three of the five rights guaranteed by the First Amendment. But, take heart. Most people can name all five members of the cartoon-family Simpsons.

Thus at a time when information is at its most accessible, we risk being at our most uninformed.

The business model of today’s media is to find out what we want—and give it to us. The media have strayed so far from their original mission that today many in our society actually decry the watchdog function. Consider the acrimony with which many spit out the term liberal media. Whether or not you embrace liberal policy—another matter altogether—you should thank your lucky stars for liberal media, because they dare to challenge the status quo. Without the liberal media, the American Revolution might not have happened. Slavery in the U.S. might have  gone on interminably. Blacks and women might still be denied the right to vote. Hitler might be living in cozy retirement.

We need not be helpless. In the immortal and recent words of scientist and author Michael Shermer, “I am a skeptic not because I do not want to believe but because I want to know.” If you want to know, do your homework! Don’t cede your mind to sources and commentators who feed you what you already believe. Consult lots of sources. Check their sources. Examine various points of view as expressed by those who hold them, not as reported by their opponents. Set aside emotion and bias as you ferret out and weigh facts for yourself. Do so and you will vastly increase your odds of arriving at an informed rather than a manipulated conclusion. It’s not foolproof. But it beats remaining a slave to a market-driven point of view.

—Steve Cuno

eHarmony is launching a 10th anniversary campaign. They are not doing the testimonial thing, nor are they hawking their profiling feature. Good. There is no evidence that it produces better results than any other method, including letting people do their own screening. Rather, they are running warm fuzzy spots with the likes of couples swinging on a hammock and kissing underwater. Given the strong association between a warm fuzzy and romance, which is ultimately what eHarmony purports to sell, the campaign might just work.

Still, I had to laugh at this gem from CEO Greg Waldorf: “People don’t want to be sold to anymore.” If he were my marketing director, I would fire him. The statement is provably untrue, and is used by marketing people to justify wimpy, indirect, ineffective work. Unfortunately, this myth flourishes among marketing people—most of whom, ironically, have never sold anything for a living—which is why so much marketing fails miserably.

Plus, his use of “anymore” begs the question as to whether there was indeed ever a time in which people would have expressed a heartfelt desire to be sold to.

The question is not whether people like to be sold to, but how they like to be sold to. A look at what most often leads the most people to buy shows that, more than you might expect, a hard-sell approach is exactly how people want to be sold to. They will tell you the opposite in a survey, but their actions show otherwise. Not that hard-sell is the only viable option. Sometimes people want a calmer, reasoned approach. Sometimes they want a straight, factual one. And, yes, sometimes they want an emotional one, of which warm and fuzzy is a variety. How do you know which to use when? Set up an empirical test and then count the sales.

More often than not—and this is not easy to get across to clients—the kind of marketing for which people express a preference, and that clients are most proud to run, is the kind that doesn’t make an iota of difference in sales.

Do not mistake what you personally like and dislike, or do and don’t respond to, for the norm. For one thing, you alone are not a statistically valid sample. For another, you haven’t a clue as to what you respond to. Rather, you know what you’d like to think you would do, based on your self-concept. I’ll never forget the corporate decision maker who heaved me out his door because he never, ever responded to direct mail, much less my style of it, and that his customers were just like him. Shall I tell you what he didn’t know? That I mailed to him regularly on behalf of one of my clients, and that he was their most frequent respondent. This is why smart marketers test rather than assume.

—Steve Cuno