Mandated Disclosure in Literary Hybrid Speech

Article excerpt

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

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 naïve, 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.1

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."2 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.3 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. …