All Native Advertising Is Not Equal: Why That Matters Under The First Amendment And Why It Should Matter To The FTC – Part V

In this five part series, originally published in the Summer 2014 edition of the Media Law Resource Center Bulletin,1 we take an in-depth look at the native advertising phenomenon and the legal issues surrounding the practice. After canvassing the many faces of native advertising and the applicable law, the series ultimately examines the pervasive assumption that all native advertising is, and should be regulated as, "commercial speech." This assumption presumes that all native advertising is equal under the eyes of the law, and we come to the conclusion that it probably isn't. Native advertising that is closer to pure content than pure commercial speech may deserve greater or even full First Amendment protection, which would carry significant implications for government regulation2.

Part 1: Introduction to Native Advertising

Part 2: Early Native Advertising and the Current FTC Regulatory Landscape

Part 3: Evolution of the Commercial Speech Doctrine

Part 4: Distinguishing Commercial versus Non-Commercial Speech

Part 5 applies the commercial speech doctrine to native advertising and asks whether certain forms of native may be protected by the First Amendment.

—PART V—

Not all Native Advertising May Be Commercial Speech under the First Amendment

If there is one thing clear from the case law, it is that the commercial speech analysis under the First Amendment is a fact intensive one that does not clearly lend itself to bright lines, especially when dealing with mixed commercial and noncommercial speech. Native advertising also does not lend itself to a single categorization as it can take a number of forms. See Part I.A., supra. As discussed below, the appropriate level of First Amendment protection for native advertising as commercial or noncommercial speech should turn on the nature of the communication as opposed to a catch-all net.3

Native Advertising Spectrum

The native advertising spectrum ranges from speech on the one end that is commercial in the classic sense of the word and subject to intermediate judicial scrutiny, to native editorial content on the other end which may not. On the clear commercial speech end of the native ad spectrum, there is what we will call pure "native advertisements." This type of native looks very similar to traditional print or online advertising. For instance, "In-Feed Units" (i.e., "Sponsored By" posts on Facebook) and "Promoted Listings" (i.e., Etsy webpage ads) contain the familiar elements of a print or banner ad: (1) a description of a product, (2) the product manufacturer's name, and (3) some solicitation to purchase the product or some promotion of the product or brand. The native case for In Feed and Promoted Listings is almost purely contextual as they differ from traditional ads primarily because of the context of the consumer's natural experience with the website or app, either perusing through a news feed or browsing search results. "Paid Search Ads" and "Recommendation Widget ads" are similarly close to classic commercial speech as they are designed to fit seamlessly into search engine results or webpages and to link directly to a promoted product or brand.

Further along the native ad spectrum are "In-Ad" and "Custom/Can't be Contained." These native ad practices are distinguishable from the foregoing because they involve some form of editorial content. The content may be created by the brand, an agency, the publisher, or a combination of two or more. This practice—which we will term "native content"—is more editorial content than anything else. Native content includes articles, videos, and other entertainment created by brands to engage with consumers, that communicates information, expresses opinion, or discusses matters of public concern, and that brands pay to place on websites and in applications alongside other similar editorial content.

Some native content may be less editorial than others. For instance, last summer Under Armour paid Will Ferrell and the crew at Funny or Die to produce a short video, "Tom's Best Friend", which featured Under Armour products worn by Patriot's QB Tom Brady and in the background of the scene, but was more than anything a comedy sketch.4 However, it was a comedy sketch that prominently displayed the sponsor's brand of clothing.

On the other hand, other native content may not even mention the brand, product or service. For instance, Virgin Mobile recently ran "native content" without any reference to the company or its services when creating the Buzzfeed post "13 Perfectly Cast Disney Princesses."5 The article featured side-by-side headshots of Disney princesses with actors, who apparently in Virgin Mobile's opinion, would be perfectly cast to play them. There were no Virgin Mobile products featured, it did not discuss the Virgin Mobile brand, and really, the casting of live action Disney princesses had nothing at all to do with Virgin Mobile's business. This native, as with many other examples of native content, was produced almost purely for...