April 23, 2010
IN THE LATEST HARVARD LAW REVIEW, a piece on the FTC’s blogger regulations:
Recently, the Federal Trade Commission (FTC) revised their Endorsement and Testimonial Guides (Guides) to cover “consumer- generated media” such as blogs and other internet media forms. In the interest of providing consumers with full disclosure, the Guides re- quire bloggers to disclose any “material connection[s]” they have with producers of any products that they “endorse” on their blogs. A “material connection” includes not only monetary compensation, but also any free good received by the blogger — even if that good was provided unsolicited, with no conditions attached, for the purpose of al- lowing the blogger to review the product. Yet a constitutional analysis of unpaid blogger endorsements shows that such endorsements are not commercial speech — which receives reduced constitutional protection — but rather noncommercial speech entitled to full First Amendment protection. Not only do the Guides burden bloggers’ pro- tected speech, they also create an unfair double standard by exempting legacy media4 from the Guides’ disclosure requirements. Therefore, the Guides should be ruled unconstitutional as applied to bloggers. . . . Consumers should be wary of government policies that favor one form of media over another. Government discrimination among media forms based on “editorial independence” is unprecedented.
Sounds persuasive to me!