Harvard Law Review Calls FTC Blogger Guidelines Unconstitutional

7 replies
Just noticed this came out back in April, 2010:

The Harvard Law Review has dubbed the FTC guidelines for bloggers as unconstitutional and says it's an unprecedented display of media form bias + favoritism.

The updated guides were meant to curb undisclosed blogger payola and add disclosure but the HLR says:
"Bloggers are right to be upset; the Guides violate the First Amendment. The Guides treat blogger endorsements as advertisements and attempt to regulate them as such. Unlike other speech, advertising is considered commercial speech and thus receives reduced First Amendment protection... 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. The Court has already ruled that the government may not legally prescribe editorial standards for newspaper; to do so would violate the First Amendment by interfering with newspapers' "exercise of editorial control and judgment." Yet the principle underlying the Guides is that the FTC may distinguish between blogs and newspapers based on its perceptions of "editorial responsibility." Even if bloggers are, on average, less "editorially responsible" than print media, allowing the government to favor certain media forms would allow it to manipulate the "marketplace of ideas" just as direct interference with editorial content would."

Full document: http://www.harvardlawreview.org/medi...regulation.pdf
#blogger #calls #ftc #guidelines #harvard #law #review #unconstitutional
  • Profile picture of the author WebRank1
    A blog is not be confused with a sales page though.
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  • Profile picture of the author Anomaly1974
    Unfortunately, they can still legislate by fiat using regulations that are (often arbitrarily) enforced as law without having to actually have Legislative backing or any basis in law, precedent or even fact. Their continued practices in these ventures are just one of many reasons that some people believe that Uncle Sam will be looking seriously at IM'ers for his next pay raise (read: new taxes)

    “They did not know it was impossible so they did it”
    -Samuel Clemens" (As Mark Twain)

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    • Profile picture of the author JohnMcCabe
      HLR is entitled to publish their opinion. But until it is actually tested in court, up to and including the Supreme Court if necessary, it is just an opinion.

      Until such a test, the FTC can pretty much do what they want to do within the limits of their resources.
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  • Opinions don't matter, a law is a law until it's not. They can call it anything they want.

    Life isn't fair.
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    • Profile picture of the author psresearch
      Originally Posted by InternetMarketingIQ View Post

      Opinions don't matter, a law is a law until it's not. They can call it anything they want.

      Life isn't fair.
      I undertsand the pragmatic answers people are giving and it's good that you point that out to people who might not understand the intent of the original post.

      This is more about providing potential backbone to organizations and/or individuals who actually challenge the law - I should have made that clearer. This forum is probably the wrong venue for this kind of posting, come to think about it - as WF is more about operating businesses, not challenging laws.
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