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FTC Versus Bloggers and the First Amendment Online

on October 16 2009.

Yeah, right.

Under the new FTC rules, bloggers, people posting to Twitter, Facebook users, and practically anyone else who might mention a product or a service on the Web, could come under FTC scrutiny.

At Slate, editor at large Jack Shafer, in an article entitled "The FTC's Mad Power Grab," warned: "If you're a blogger and you write about goods or services—and what blogger doesn't write about books, movies, music, theater, restaurants, home theaters, laptops, manicures, clothing, tutoring, bicycles, cars, boats, cameras, strollers, watches, lawn care, pharmaceuticals, gourmet food, maid service, hair care, concerts, banking, shipping, or septic tank service from time to time?—then you've just made yourself vulnerable to an investigation from the Federal Trade Commission."

To answer the question of what vague criteria will lead the FTC to persecute bloggers, Shafer cited a summary prepared by the Washington law firm of Arnold and Porter. According to that summary:

The FTC states that it will consider a number of factors including (1) whether the speaker was compensated; (2) whether the product was provided for free; (3) the terms of any agreement; (4) the length of any relationship; (5) previous receipt of products or likelihood of future receipt from the same or similar advertisers; and (6) the value of any items received. The revised Guides further state that it may not matter that the advertiser does not control whether the speaker reviews the product positively.

Shafer also quoted the responses FTC spokesman Richard Cleland gave to blogger Edward Champion in response to questions seeking clarification of the new regs. Cleland's response was to suggest that his agency would look at each situation "on a case-by-case basis to determine whether or not there is a sufficient nexus, a sufficient compensation between the seller and the blogger."

"In other words," Shafer commented with plenty of situation appropriate sarcasm, "the vagueness of our guidelines doth make suspects of you all."

Joining the chorus of bloggers opposing the FTC's power grab is Interactive Advertising Bureau President Randall Rothenberg, who is calling for the FTC to rescind its new guidelines. In an open letter to FTC Chairman Jon Leibowitz, Rothenberg said, "the FTC’s new Guides open the door to extremely selective pursuit and prosecution of those least able to defend themselves against government's hammer: the solo entrepreneurs and opinionated individuals who are most vital to the functioning of our democracy and economy."

Worse, however, is the fact that the new FTC restrictions are blatantly unconstitutional. “What concerns us the most in these revisions is that the Internet, the cheapest, most widely accessible communications medium ever invented, would have less freedom than other media,” Rothenberg argued. “These revisions are punitive to the online world and unfairly distinguish between the same speech, based on the medium in which it is delivered. The practices have long been afforded strong First Amendment protections in traditional media outlets, but the Commission is saying that the same speech deserves fewer Constitutional protections online."

Indeed, the FTC is entirely out of bounds with its proposal to regulate and possibly prosecute bloggers and others for online speech. The wording of the First Amendment is absolutely clear: "Congress shall make no law … abridging the freedom of speech, or of the press…."

The FTC was created in 1914 by an act of Congress. The agency is now in direct violation of the provision of the Constitution prohibiting Congress from suppressing speech. As Rothenberg puts it, the FTC's "expedition from Oceania – that’s the place Big Brother ruled – should be worrisome to all Americans, and to all viewers, readers, listeners, users, and providers of any communications medium." As such, all Americans should insist that their Representatives and Senators take action immediately to reign in the agency's abuse of power.

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