Mandated Disclosure in Literary Hybrid Speech

• Publication year: 2021

MANDATED DISCLOSURE IN LITERARY HYBRID SPEECH

Zahr K. Said(fn*)

Abstract: This Article, written for the Washington Law Review's 2013 Symposium, The Disclosure Crisis, argues that hidden sponsorship creates a form of non-actionable influence rather than causing legally cognizable deception that mandatory disclosure can and should cure. The Article identifies and calls into question three widely held assumptions underpinning much of the regulation of embedded advertising, or hidden sponsorship, in artistic communications. The first assumption is that advertising can be meaningfully discerned and separated from communicative content for the purposes of mandating disclosure, even when such advertising occurs in "hybrid speech." The second assumption is that the hidden promotional aspects of hybrid speech create a form of legally cognizable deception. The final assumption holds that disclosure is normatively desirable, to inform audiences of hybrid speech of its hybridity, and in so doing, to remedy the perceived harms that flow from hidden sponsorship. The Article challenges these three assumptions by using as an example the little-remarked phenomenon of sponsored literature, literary texts in and around which advertising is inserted, as well as literary texts that owe their existence to commissioning advertisers. The standard disclosure literature does not consider contexts such as these, in which the decision-making process does not involve crucial questions of life or death, shelter or homelessness, solvency or bankruptcy. Thus the entertainment context of hybrid speech demands different regulatory treatment. The Article concludes that mandatory disclosure is the wrong regulatory response to hidden sponsorship because the harms that it ostensibly creates are rooted in influence, rather than deception.

INTRODUCTION................................................................................420

I. BACKGROUND: THE EXISTENCE OF HYBRID SPEECH IS WIDESPREAD........................................................................423

A. Sponsorship Plays an Important Role in the Economy........424

B. Sponsorship Exists in Literature..........................................427

II. " WRITTEN LIKE AN ADVERTISEMENT": ART IS NOT NEUTRAL .................................................................................... 432

A. Advertising Is Considered Non-Neutral, Whereas Other Content Is Neutral................................................................433

B. Art Intermingles with Advertising.......................................435

III. SPONSORSHIP LAW SHOULD MOVE ITS FOCUS FROM DECEPTION TO INFLUENCE...................................................445

A. Several Areas of Law Regulate Sponsorship and Deception.............................................................................446

B. Regulatory Principles Vary by Agency................................449

C. Sponsorship Disclosure Laws Target Concealed Influence..............................................................................452

IV. DISCLOSURE IS A REGULATORY TOOL WITH SIGNIFICANT LIMITATIONS...................................................457

A. The World of Entertainment Is Unique for Regulatory Purposes...............................................................................458

B. Materiality and Constitutionality Present Doctrinal Hurdles ................................................................................. 465

V. LITERARY HYBRID SPEECH MAY DEFY ALL THREE PRESUMPTIONS......................................................................... 467

CONCLUSION: SPONSORSHIP LAW'S FUNDAMENTAL ASSUMPTIONS SHOULD BE REVISITED .............................. 474

INTRODUCTION

This Article, written for the Washington Law Review's 2013 Symposium, The Disclosure Crisis, argues that hidden sponsorship creates a form of non-actionable influence rather than causing legally cognizable deception that mandatory disclosure can and should cure. The Article identifies and calls into question three widely held assumptions underpinning much regulation of embedded advertising. In particular, it takes aim at the central mechanism by which such regulation seeks to remedy any harms perceived to emanate from hidden sponsorship: disclosure. It challenges these three assumptions by using a previously unexamined terrain for sponsorship: literature. Sponsored literature consists of literary texts in and around which advertising is inserted, as well as literary texts that owe their existence to commissioning advertisers.

The Article applies these three central assumptions to sponsored literature and concludes that collectively, these assumptions should be revisited and either abandoned, or more thoroughly theorized and justified. At present, these assumptions are naive, mistaken, or otherwise indefensible. In turn, undermining these assumptions weakens the case on behalf of mandated disclosure for the influence ostensibly exerted by embedded advertising, or the insertion of promotional products or messages in artistic content.(fn1)

The first assumption is that advertising can be meaningfully discerned and separated from communicative content for the purposes of mandating disclosure, even when advertising occurs in expressive or artistic content; that is, even when it occurs in what we could call "hybrid speech."(fn2) Hybrid speech refers to collaboration between advertisers and content producers in the creation of content that is functionally a hybrid of promotional and artistic messages.(fn3) The second assumption, which builds on the first, is that the hidden promotional aspects of hybrid speech create a form of legally cognizable deception. The final assumption also builds on the first, and it reflects a long history of regulatory and legislative action. It relies on the notion that disclosure is normatively desirable in that it informs audiences of hybrid speech of its hybridity and it delineates the respective contributions from both content creators and sponsors. In so doing, disclosure is thought to remedy the perceived harms that flow from hidden sponsorship.

Accordingly, the Article proceeds in four parts. Part I provides a background in sponsored forms of communicative content, arguing that hybrid speech is common, and likely to continue to increase, in film, television, internet content, and even literature. It emphasizes literature as a special case because currently there is no disclosure regime applicable to most forms of literature. Furthermore, no scholarship has focused on sponsored literature yet. Finally, this scholarship is timely because sponsored literature, in one form or another, is likely to become more and more common.(fn4) Part II tackles the question of whether advertising content can truly be parsed and differentiated from creative content such that one can satisfactorily be called "art" and the other "commerce" for the purposes of mandating disclosure as to art's origins. Discerning who contributed what to a work of art, and why, is a notoriously difficult endeavor. However, sponsorship endorsement law seems to presume its feasibility. Part II then suggests, through reference to sponsored literary texts, that such a division is often unrealistic and potentially unreliable.

Part III argues that, to the extent that hidden forms of sponsorship permeate expressive content, their presence constitutes a form of influence over audiences rather than a form of deception. Because influence is different from deception, the law should not treat it the way it treats traditional forms of deception. This Part draws on Gregory Klass's taxonomy of regulatory approaches to deception to conclude that a causal-predictive model of deception might encompass the harm of "influence" through hidden sponsorship. Part IV queries whether disclosure is a tool that effectively addresses the concerns that hybrid speech raises for consumers, focusing on the question of sponsored literature. It relies upon the groundbreaking work of Carl Schneider and Omri Ben-Shahar to conclude that disclosure is not effective in this manner because it is incapable of providing readers with the information they would-or perhaps should-desire in order to make decisions about their entertainment content. On the contrary, disclosures in literary hybrid speech would likely only impose on readers by diminishing their immersion in the entertainment content and by burdening them with intrusive and potentially voluminous information that does not materially affect their decisions.

To some extent, consumer preferences in this context are unknown. Consumers might indicate that they would welcome more information in the form of disclosures, but their preferences might change if such information were presented in an interruptive fashion. If consumers had to make choices between more information (and less immersion), or less information (and more immersion), it is unknown which they would choose. Put another way, it is unclear whether consumers would prefer to sacrifice immersion or information provided by disclosure if they were unable to have what they considered an optimal balance of both. It is also unknown whether, if regulatory limitations on sponsor participation decreased the available amounts or forms of content, consumers would believe themselves better or worse off.

Yet there is also a normative question apart from the...