Recently-released updates to the Federal Trade Commission’s (FTC) “Guides Concerning the Use of Endorsements and Testimonials in Advertising” seek to deny bloggers’ free speech rights by restricting how writers may discuss products or services companies provide for their review. While I favor transparency and honest disclosure wherever conflicts of interest may exist, the FTC’s disparate treatment of old and new media inherently denies new media its First Amendment rights.
The revised guides, by the FTC’s own judgment, do not apply to traditional media outlets because those organizations employ editorial boards to oversee their content. The FTC contends that, because an independent body, not the author, has determined what product or service will be discussed, the reader’s perception of a particular review will not be influenced by any connection that may exist between the reviewer and the subject of his or her review. By this logic, however, if I review a product, my free speech rights could be infringed upon because my work was not produced for a traditional media organization and no independent consideration was given to which product to review. Given the severe penalties imposed for violating the FTC’s advertising guidelines and the complexities of the regulations, it is quite possible that I or another blogger would refrain from writing about a particular product, thus infringing on the free speech protections afforded by the First Amendment. By applying its guidelines differently based on where a blog is published, the FTC also seeks to deny independent bloggers equal protection of their constitutional rights.
Following the FTC’s reasoning for exempting traditional media from its revised advertising guidelines, a product review written for a newspaper, which is also posted to the author’s blog, could be treated as an endorsement requiring disclosure in the blog, while similar disclosure would not be required in the newspaper. Similarly, under the editorial-board argument, a blog appearing on a newspaper’s website would be afforded the same free speech protections as the newspaper itself, while an independent blogger discussing the same topic could be subject to the disclosure requirements embodied in the FTC guides. While I am not against revealing potential conflicts of interest, where an author’s work appears should have no bearing on which First Amendment protections that author is afforded, nor should the number of people involved in selecting the topic.