Drawing the Line Between “News” and Commercial Speech

Panel 3 at the Abrams Institute conference
Moderator:  Terri
Seligman – Partner and Co-Chair of the Advertising, Marketing & Public
Relations Group, Frankfurt Kurnit Klein & Selz: newsworthiness/editorial
value when there’s a commercial component. As an advertising lawyer, thinks of
it this way: 1A provides scant protection for false/misleading speech or commercial
speech disguised as noncommercial.  But
what if the line is challenged? Fake news sites selling things; real sites
monetized through affiliate links; influencers.
Paul Safier – Of Counsel, Ballard Spahr LLP: Media/quasi
media cases where the court didn’t bite the bullet—looked at speech that could
have been categorized either way and called it noncommercial.  First, Daniels v. Fanduel: right of
publicity/fantasy sports.  It’s
information about real events, monetized in a new way.  Ps argued that it was newsworthy in most
contexts but not here: no one is going on these websites to get sports
analysis.  Indiana SCt: it’s newsworthy
in a newspaper so it’s newsworthy here.
EDPa: GoLo LLC v. Hyatt: A genre—consumer review sites, 1-3
people w/no real editorial staff.  Can be
very lucrative if you use SEO.  You can
buy traffic, not just w/keyword ads, if you’re clever about how you frame your
reviews, you can ensure you’ll be a top result when people search for whether X
diet works.  Vary in how they monetize,
but some have affiliate relationships. Almost all use Google AdSense for
clickthrough ads, using algorithms based on searches.  So Google will show ads for competitors next
to review for a particular diet, though the site had no control over which ad was
P’s theory: this isn’t a real review website, but fake, and
thus not entitled to protection. Strong theory: website itself was really just
an undisclosed commercial site (which sometimes happens, but not w/his
client).  Judge rejected that theory as
inadequately pled under Twiqbal.
Weaker theory: nothing valuable, newsworthy, editorially protected, so it was
pled there was no research or analysis in reviews, which conveyed no useful
information at all but were just monetizing SEO.  Court rejected that theory too, accepting it
as accurate description: even if there was nothing valuable on the sites and
they were just clever SEO, that wasn’t commercial speech—they’re still
marketing the speech, not marketing a separate product.
Geitech East Bay v. Lutron, SDNY case: coming from a press
release about a lawsuit.  One company
sued the other for patent infringement & issued a press release about
it.  IP claims were dismissed &
defendant counterclaimed for false advertising based on the press release.  Court disagreed: it wasn’t commercial speech
b/c there were no buying terms in the press release.  [I read this case mostly as about Lanham Act “advertising
or promotion” but there’s undeniably a commercial speech component.]
Another case, involving songs sold as being by Michael
Jackson that allegedly weren’t: descriptions of songs/who performed the music
aren’t commercial speech b/c there’s a controversy about whether it was really
Michael Jackson performing. Obviously, that conflicts w/Kasky v. Nike on its
face.  Better argument: in Nike, speakers
knew the right answer—they knew that they weren’t complying w/labor
practices.  Jackson is dead, and the
speakers don’t know for sure; though this looks like a factual representation
about product, this is a disputed thesis about a matter of historical fact and
thus shouldn’t be considered commercial speech. 
[This doesn’t help distinguish Kasky, where the practices at issue were
carried out by subcontractors; what does help distinguish Kasky is that the
underlying work being sold is expressive and therefore the protections given to
expressive works can reasonably be extended to advertising that merely repeats
the content of the underlying work.]
Seligman: a different case on affiliate advertising came out
differently. What were the differences?
Safier: relations w/somewhat loosely related products
weren’t enough—no relation b/t specific content of challenged speech and the
products they were affiliated with, though reviews of those products w/which
site had business relationship might be commercial speech.
Mary Engle – Associate Director, Division of Advertising
Practices, Federal Trade Commission
Newsworthiness is not the axis we use to identify commercial
speech, though it could play a role.  FTC
challenged an RJR issue ad on cigarettes and science; FTC Commission overruled
ALJ and found it to be commercial speech. Pom Wonderful: also looked at
multiple factors about what constituted commercial speech.  Settlement with ADT, which paid experts to
promote its security system in media interviews and online; FTC challenged
misrepresentations as independent expert. Inside Publications/Creaxion:
publisher ran advertorials and social media promoting FIT Organic mosquito
repellant, pursuing to agreement w/PR firm promoting FIT Organic.  Got some athletes to highlight that, without
disclosure, as part of a regular feature in the magazine. Magazine did label
other paid ads as advertorials. Challenged as misleading.  Discussed Olympians’ use of repellant to
avoid Zika virus, so there was a newsworthiness hook, but it was marketing.  Similar acts on athletes’ social media. 
Business Guide: Sponsored non-promotional article where it’s
not promoting sponsor’s product doesn’t need disclosure, by contrast.  You don’t even have to say “presented by” to
avoid FTC scrutiny, but we expect that they will b/c otherwise it’s not getting
exposure.  Another example:
redistribution of third party review using 3d party widget on magazine site:
the article itself isn’t commercial speech, but redisseminated is advertising
and the advertiser is responsible for product claims communicated by the
article and if the redissemination is presented in a way that misleads
consumers to believe that the magazine endorses the advertiser’s product, that
is not ok.
Review sites: FTC has challenged sites that were indeed
fake, distinguished in the GoLo decision: shams where advertisers create a
review site to review all products but magically find that theirs is the
best.  That’s not hard (and the courts
agree, though Safier interjects to say that a big Q is how you have to plead
Seligman: NAD is fearless about bringing cases against
publishers, while FTC seems more reticent. 
Hypothetical: were a network or publisher to be aware of the paid spokesperson
relationship, would that make a difference into whether that entity could be
subject to an enforcement action for nondisclosure?
Engle: would depend: if it wasn’t being paid, then that
wouldn’t concern us. If the publisher was being paid, that’s Inside
Publications: the publisher was formatting the ad to look like editorial
content; it wasn’t being held liable for being a publisher but for acting like
an ad agency. 
Seligman: so, less relevance to a talk show.
Engle: yes.
Rhonda Powell – General Counsel, Buzzfeed
NAD case: Says nice things about NAD inquiry. We have
shopping guides, and anyone who visits knows that we make lists.  Among those lists are often things you might
want to buy, or places you might want to travel.  Inquiry involved shopping guides, especially
a review of a moisturizer.  Underlying
assumption: something in a list has been positively reviewed. Separately, once
the decision had been made to include the product, our sales force reached out
and said to the manufacturer: would you like us to include a link to purchase
your product at the end of the review. 
Manufacturer said yes. They don’t do that for free.  Did the link inclusion convert it from
editorial content to commercial speech. 
Conclusion: No.  Many reasons,
including that there was no specific call to action in the guide itself for
someone to buy. The link was included as a convenience but there was no
requirement for access to the info or otherwise to buy the product, or that you
use that link to buy the product—it was widely available. The person who chose
the product for review and reviewed it had no relationship to and no knowledge
of the decision to include the link, which was separate and after. A different
decision would’ve been rough on us financially; we take pride in having our
reviews accurately represent the views of our editorial staff.
Seligman: this was a relatively easy case for NAD b/c
Buzzfeed could prove separation of church and state.  One of the things NAD said was that it found
that the primary economic motivation was editorial content, but if a publisher
created content w/intent to motivate consumers to buy through affiliate links,
that could be advertising w/in NAD jurisdiction b/c it’s like other
advertising.  If intent is what
matters—is that really so different from ordinary ad-supported content
creation?  You create shopping guides
knowing you will create affiliate links. 
Buzzfeed can separate church & state but will a 1 person shop be
able to do that?
Safier: if they place all your ads through Google, they have
no control/a mechanical way to create separation of church & state. Many of
them are unsophisticated—they slept on this mattress & it was great!  Those claims have to be sincere, but they
aren’t scientific.
Question: does newsworthiness require utility to the public?
[Newsworthiness seems like the wrong axis for
falsity/misleadingness regulation of commercial speech and Bolger I think clearly
so indicates. Newsworthiness is much more useful for privacy claims and
anything else that purports to extend its coverage to noncommercial speech.]
Seligman: Right of publicity concerns: publisher doesn’t
want its content to be deemed commercial so it can write about celebrities, but
the division isn’t quite the same when it comes to false/misleading

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