Regulating Speech to Death

 Posted by on 5 October 2009 at 2:00 pm  Free Speech
Oct 052009

Adam Ostrow of Mashable reports on dangerous new regulations on speech:

Bloggers now have up to 11,000 reasons to disclose when they are being paid to review products.

The [Federal Trade Commission] has updated its Guides Concerning the Use of Endorsements and Testimonials in Advertising for the first time since 1980, and among the changes, a requirement that “bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.” Fines for violating the new rule will run up to $11,000 per post.

Here’s the critical portion of the announcement from the FTC:

The revised Guides also add new examples to illustrate the long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers — connections that consumers would not expect — must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service. Likewise, if a company refers in an advertisement to the findings of a research organization that conducted research sponsored by the company, the advertisement must disclose the connection between the advertiser and the research organization. And a paid endorsement — like any other advertisement — is deceptive if it makes false or misleading claims.

Observe that the FTC openly declares that its decisions will not be based on any objective principles, knowable in advance. Rather, “decisions will be reached on a case-by-case basis.” Moreover, Ostrow rightly observes that the regulations would not merely concern simple exchanges of money for good opinions but might also concern any kind of benefit:

Beyond straight up pay-per-post systems like Izea, it the new rules would seemingly apply to any situation where something of value changes hands between advertiser and blogger. For example, General Mills and Ford Fiesta bloggers would have to disclose the relationship they have with the advertiser.

But then, to my amazement horror, Ostrow endorses these regulations!

Certainly, it seems like this is an update that’s time has come. While most well-run social media programs already include appropriate disclosure, there’s still no shortage of unscrupulous marketers using deceptive practices to sell products. Now, with the threat of serious fines, those who look to push the boundaries of ethical blogging will be doing so at their own risk.

Ugh. Here’s my view, posted on Mashable and elsewhere:

In the name of “openness” and “disclosure,” free speech is being slowly destroyed in America. If the government were burning books, people would be up in arms. However, the statists — left and right — are crafty. Instead of outright bans, they prefer regulations.

We’ve already seen this happen with the massive regulations on political speech. In many states, including my own Colorado, ordinary people cannot speak out about candidates or ballot measures due to very confusing disclosure laws enforced by heavy fines.

Now the federal government plans to threaten bloggers with massive fines based on the whims of bureaucrats — who will soon, I guarantee you, write pages and pages of uber-dense and convoluted rules about what counts as “a review” or “payment” and the required form of the disclosure. Soon, almost any speech about a product will be regulated. Oh, how the large producers of crappy products will love that! They’ll soon be lobbying the government for further restrictions and regulations.

The inevitable result will be that many honest bloggers will stop discussing products entirely — or they’ll stop blogging. Seriously, how many bloggers make enough money to cover the potential fines? How many bloggers will have the time and the fortitude to read through all the regulations, to know whether they’re complying or not with them? Many other people will not start a blog; it would be too much trouble — and too risky.

Gee, do you think that will benefit consumers? Do you think the result will be better information about products on blogs? Of course not!

Do not be surprised by that. In fact, the aim of the government is not to protect us from those few dastardly reviewers who accept money on the side in exchange for positive reviews. The aim of the government is to control what we think and what we do by regulating the marketplace of ideas to its death. They’re doing an excellent job of that — and most Americans are blind to the danger.

Folks, this ruling is very, very dangerous. Make a stink, if you care for your freedom.

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