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RECOMMENDED!






Judging a Book by its Cover

by Wendy J. Woudstra   

 
 


Last month a California appellate court ruled that book-jacket copy was commercial 'speech' and thus jacket copy making verifiably false claims isn't entitled to First Amendment protections.

The ruling was made against Buena Vista Books, Disney's publishing division, in a lawsuit involving the "Beardstown Ladies Investment Club" books. The covers of those books overstated the actual rate of return the club received from their investments in various ways.

While the impact this ruling has will vary from publisher to publisher, it serves to remind us of the purpose and importance of cover copy. It also creates a good opportunity to examine the difference between commercial and noncommercial speech according to U.S. law.

COMMERCIAL SPEECH

Few people realize that there is a difference between the protection afforded these two types of speech, but the difference is quite substantial. In fact, until 1976 commercial speech had no first amendment protection at all (based on the misguided belief that people need protection from the guy trying to sell them the commercial object of a Pinto, but they can be trusted to make a rational judgement against the guy selling the non-commercial concept of white supremacy).

The government inquires into the truth of advertising claims on a regular basis, and can ban those advertisements that are false. This is in direct contrast with the basic First Amendment principle that says government may not inquire into whether protected speech is true or false. It is not the government's job to decide that one viewpoint or idea may be heard while another will be censored.

"Advertising and other communications proposing commercial transactions between the speaker and listener are not fully protected by the First Amendment. The Supreme Court has said that commercial speech may be restrained if it is false, misleading or advertises unlawful activity. Any governmental restraint must advance a substantial public interest and must not be more extensive than necessary to serve that interest." [From the First Amendment Handbook]

IS JACKET COPY ADVERTISING?

Disney argued that the cover description merely repeated the contents of the material within the book itself, and therefore should be protected under the First Amendment. That argument worked with a Superior court judge in September, but on appeal the ruling was overturned, and the court determined that the cover constituted advertising, and therefore falls under a different (lower) level of protection.

The appellate court ruling merely confirms what publishing experts have been telling neophytes for years - jacket copy sells books.

The appellate judge probably took a look in some publishing manuals to find out what the insiders say about jacket copy. I have yet to read an industry expert that does not advise on the sales power of cover copy. According to Linda Foster Radke's, The Economical Guide to Self Publishing, for example, the purpose of cover copy is: "to influence a possible purchaser scanning the book in a display."

Is cover copy commerical speech? My sources say yes.

EFFECTS

In many publishing houses, cover copy is written by the marketing and publicity departments. Sometimes the person writing the copy has only skimmed the book. If this sounds like your publishing operation, it's time to take a closer look at your covers. If you already take pains to ensure the accuracy of your books, inside and out, there is little to be concerned about. This ruling, however, should serve as a call to be more aware of the advertising that heads out your door - at least the stuff heading to California.


by Wendy Woudstra