Remember the Beardstown Ladies? Their "common sense" investment guide became a best-seller in the mid-1990s. The story of these 16 small-town women who formed an investment club in the early 1980s and reportedly beat the market over a 10-year period titillated middle-class consumers eager to share in the bull market, while vindicating a mistrust of expertise that runs through American culture--along with a contradictory propensity for seeking advice from self-help authors.
The gullibility of the book-buying public has been a great boon to publishers and self-appointed gurus of personal development, dieting, finance, exercise, and professional advancement. But in our litigious society, marketing to the gullible is not without risks, as the Beardstown Ladies' publisher, Hyperion, recently discovered. In 1998 the Ladies acknowledged that their rate of return had been greatly inflated by a computer error. Instead of beating the stock market with a 23.4 percent annual return (between 1984 and 1993), they had actually underperformed the market with an annual return of 9.1 percent. At least a few consumers, it seems, were shocked and appalled. In California and New York, class action suits for false advertising and deceptive practices were filed against Hyperion and its parent company, Disney's Buena Vista Publishing Group.
The lawsuits were based on the publisher's promotional statements, which accurately reflected inaccurate material in the original text: The book jacket had repeated the mistaken claim that the Beardstown Ladies' "secret" investment strategy had produced a 23.4 percent rate of return. As the court in the New York case noted, the plaintiffs complained that such claims had "induced" them to purchase the book, but that it "does not contain any secrets" and "the investment advice is general and unsophisticated and is readily available from other sources for free."
People who buy a book titled The Beardstown Ladies' Common-Sense Investment Guide should probably not be surprised when it merely offers common sense--"general and unsophisticated" investment advice freely available from other sources. But mystifying the obvious is a traditional marketing technique for self-help authors and publishers: They typically package common sense, or the proclamations of other self-styled experts, as special, secret wisdom or techniques that the enlightened author generously wishes to share. Readers shouldn't expect a self-help book to contain secrets, but publishers shouldn't promise to reveal them.
Critics of the mass market self-help industry may take some satisfaction in the lawsuits against Disney, but these suits do not bode well for free speech. Publishers necessarily rely on the factual assertions of authors, as courts have recognized; thorough, independent fact checking may not always be possible, and the time and expense the effort would require would deter the publication of a great many books. The text by the Beardstown Ladies was constitutionally protected (and the Ladies were not sued), even though it contained inaccu-racies. The publishers' promotional claims were derived directly from this protected text. Why should a publisher be liable for repeating on the cover claims that are protected when they appear in the text?
The New York State Supreme Court held that the cover claims were indeed protected, and dismissed the case against Disney, noting that while inaccurate statements may be considered unworthy of constitutional protection, they are "inevitable in free debate." There are, however, constraints on false commercial speech, and this case turned on the nature of the publisher's promotional claim. The court held that it was not commercial speech. At most it was "hybrid speech," intended to help market the book, which told the Beardstown Ladies' story. Advertisements for books are entitled to more protection than advertisements for laundry detergent, the court observed.
But a California court has viewed this case quite differently, holding for the plaintiffs that the promotional material was unprotected, false commercial speech. (Both the New York and California decisions are being appealed.) Meanwhile, the false advertising case against Hyperion appears to be the beginning of a trend: Penguin Putnam and Simon & Schuster are being sued for publishing print and audio versions of a book "authored" by popular mystery writer Lawrence Sanders, whose name appeared prominently on the cover and in advertising. The trouble is that Sanders died long before the book was published; it was actually written by Vincent Lardo, as small print on the Library of Congress page acknowledged. The plaintiffs in this case are being represented by the same law firm that sued Disney in New York over the Beardstown Ladies' investment guide.
As a civil libertarian, I deplore these cases and believe the publishers have the First Amendment on their side. As a reader, however, I'd miss neither self-help guides nor ghostwritten books. As a writer, I'm tempted to cheer when publishers are held accountable for treating books and authors like commodities. Dead or alive, Sanders is a brand--like Tampax, Chapstick, or CBS. Publishers rely on the fact that books are unlike other products when they defend themselves against false advertising claims. But their own tendency to conceive and market books like products is, in part, what inspires these claims. People eager to invoke the sanctity of public discourse should avoid degrading it. ¤
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