Wednesday, October 14, 2009

Watch Out For The FTC!

Meant to link to this last week, but Jack Shafer at Slate has a nice round-up of the FTC's crazy new guidelines that assert the power to regulate and fine bloggers, social networkers, and twitterers who write about goods or services and don't disclose where they may have received such goods or services for free. The Shafer piece is a quick read, well worth the five minutes it should take you, but as simply as possible, here is the problem. If a friend gives you a free meal at his restaurant and you write about it on your blog without disclosing you got the meal for free, you could be subject to FTC fines. If you get a free advanced copy of a book and you review that book on a personal blog without disclosing how you got the book, you could be subject to FTC fines. This sort of overreach is no surprise to me, but this bit by Shafer outlines my real concern:

Because of a pesky thing called the First Amendment, the guidelines don't apply to news organizations, which receive thousands of free books, CDs, and DVDs each day from media companies hoping for reviews. But if the guidelines don't apply to established media like the New York Review of Books, which also happens to publish reviews on the Web, why should they apply to Joe Blow's blog? Regulating bloggers via the FTC while exempting establishment reporters looks like a back-door means of licensing journalists and policing speech.

This is the exact same problem we see with campaign finance reform, where newspapers and the news media are free to opine on issues and candidates, but ordinary citizens are restricted in their ability to organize and speak on the same issues and candidates. The FEC has avoided a great deal of backlash by avoiding bloggers, but the FTC may have more of a taste for controversy. Whatever the reasoning is, what's truly frightening is the notion of an institutional media and a nation where the newspapers are more free to speak than private individuals. And it's just plain crazy. The Bill of Rights does specifically refer to freedom of the press, but no where does it say that the government can distinguish between the press that is the New York Times and the press that is this blog.


Anonymous rose said...

I don't understand law. Why would the first amendment protect a news organization under these circumstances, but not an individual?

That's just weird stuff. It seems like every government agency was handed a memo the day Obama got into office demanding that they ramp up their activity.

The FTC (prodded by the justice department) has said a bunch of ridiculous stuff about how lax antri-trust enforcement was a major cause of the recession and they're "not going to stay on the sidelines anymore". I'm no trust expert, but I don't know of anybody who thinks that Apple, Google and Airline companies caused the recession, but anyway, the FTC is comin.

9:43 AM  
Blogger lonely libertarian said...

This particular case is more about politics and bureaucratic rule making than Constitutional law, but point well taken. I don't think these regs would ever survive Constitutional scrutiny- as opposed to campaign finance issues, where the government can claim a compelling interest in limiting political corruption. Applying these regs to individuals blog posts and tweets stretches not only the Constitutional protections of free speech, but the FTC's legislative grant of power as well.

11:47 AM  
Anonymous rose said...

So in short, they've made a law that may not be constitutional, that may not be under their authority to grant...

to address a non-existant problem.

Sounds like resources are being used well.

4:50 PM  

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