In Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. ____ (2003) (PDF, 345kb), the Supreme Court held that:

[W]hen nondisclosure is accompanied by intentionally misleading statements designed to deceive the listener, the First Amendment leaves room for a fraud claim.

Slip. op. at 2. Telemarketing Associates (it is traditional to choose a fairly unique short title, and by definition a state Attorney General—Lisa Madigan—does not have a "unique" name for litigation!) arose from specific misrepresentations made by telemarketers soliciting charitable donations. The telemarketers told potential contributors that "a significant amount" (often citing a figure of over 80%) of the funds raised would go to certain programs to benefit Vietnam veterans. However, Telemarketing Associaties knew that in fact less than 15% of the funds would benefit the charities, the remainder being eaten up by Telemarketing Associates' profits and "administrative costs." The Supreme Court held that the complaint's allegations of this activity could proceed to trial, and that Telemarketing Associates' First Amendment right to solicit charitable contributions did not shield it from potential liability for fraud.

Although this does not seem at first blush to apply to book covers and other book marketing materials, the hierarchy of First Amendment law indicates that it does. Solicitations for charities have more First Amendment rights than do either simple advertising or even more-protected commercial speech. Cf. Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781 (1988) (soliciting charitable contributions is protected First Amendment speech, and a restriction on the amount or proportion of overhead expenses is an unlawful prior restraint) with Donaldson v. Read Magazine, Inc., 333 U. S. 178 (1948) (the power "to protect people against fraud" has "always been recognized in this country and is firmly established," and fraudulent speech is not inside the First Amendment). Intentional misstatements of fact intended to induce purchase of a product or service are false advertising and may constitute fraud.

In the all-too-real cases noted previously, the trumpeting of the 23% return on the cover was an intentional misstatement of fact, as acknowledged by the disclaimer inside the book in very small type. Stating the rate of return produced by an investment strategy on the cover of a book that describes that strategy is intended to induce a buyer to purchase the book. The only question remaining is whether the cover of the book somehow has even greater First Amendment protection than does the statement over the telephone of a solicitor of charitable contributions. Other cases concerning commercial speech indicate that the cover does not enjoy such protection, although none state so outright.

What does this mean to authors? First of all, don't blurb a book without reading it! To use a couple of examples from speculative fiction, Marion Zimmer Bradley was believed to have given blurbs to books under circumstances indicating that she had not read the books. A publisher that knows this—and publishers were certainly aware of her failing health—or even suspects this has no business putting a blurb on the cover implying or stating that the endorsement is on the basis of having read the book. This is perhaps different from the more-common problem of a Famous Author proclaiming that the book is the greatest piece of literature since sliced bread, when even cursory examination of Famous Author's books would lead one to question whether Famous Author could recognize a great piece of literature (or, all too often, sliced bread). But only perhaps—I can imagine (no, I could actually cite except for the confidentiality provisions in a settlement) circumstances under which that could be an unacceptably misleading statement.

Second, authors have a responsibility to at least inform publishers that proposed cover designs are misleadingly inaccurate. Admittedly, the S&Ms very well may tell the author to sod off on the dubious ground that the author doesn't know how to sell books. <SARCASM> Whether the S&Ms do any better is left as an exercise for the reader. </SARCASM> At least the author, though, has fulfilled his or her ethical and legal responsibility to provide the information (and keeping a copy of the communication will keep him or her out of court). Unfortunately, this probably does not extend to objecting to the latest Frank Frazetta/Rowena clone cover painting of chicks in steel brassieres in subartic climes, but it's a start.