One of the biggest questions that’s come up time and again about the new FTC Guidelines is how this applies to Journalists. Most bloggers have the perception that journalists writing for newspapers and magazines are sent free stuff all the time that they then write about, with no need to disclose that the stuff came to them for free. This seems unfair at face value, now that bloggers are being asked to disclose in their pieces whether a company provided them with a product or service for free, at a reduced rate, or some other form of exchange, where the company sought to promote its product, and the blogger is essentially rendering this service.

There is a fine line between editorial pieces in journalism and endorsements, and I have even seen the term “advertorial” thrown around from time to time. But the bottom line is that most journalists have been to Journalism School. Most publications of high quality, including places like the Washington Post, New York Times and reputable magazines (Have you seen “The Devil Wears Prada?”) have strict guidelines on whether journalists can accept gifts.  There are obviously products and books regularly sent to newspapers, and restaurants that would like nothing better than to provide a free meal to restaurant reviewers, but journalists can’t keep products they review;  they can’t keep the books they read for work;  they can’t accept free meals, because this crosses the line between journalism – unbiased reporting- and creating an exchange, or quid pro quo that might slant a review or recommendation.  This separation, like that between Church and State, is sacred in some circles, while in others, people can’t wait to breach this wall.

What About Free Speech?

One of the more interesting criticisms I have seen of the new FTC guidelines requiring bloggers to disclose any exchange, product, discount or other exchange that may exist between them and an advertiser or company, is that somehow this violates “free speech”.  The right to free speech in the Constitution has been litigated extensively, as anybody who’s ever taken a Constitutional Law course knows.  I’ll explain this for those of you who may not have had this privilege as simply as I can.

While the Constitution states that “Congress shall make no law… abridging the freedom of speech, or of the press…” it’s clear that Free Speech and Press are not identical, nor are either of them absolute.  In Schenck v. United States (249 US 47 (1919)), the Supreme Court held for the first time that the Freedom of Speech was not absolute, but had limits.  Oliver Wendall Holmes wrote in his opinion that the constitutionality of free speech depends highly n the circumstances surrounding the speech.  You’re not allowed, for example, to yell “Fire!” in a crowded theater, and there are words that have the effect of force, can incite others to riot- leading the Supreme Court to fashion a “clear and present danger” test.  In later decisions, including Brandenberg v. Ohio 395 US 444 (1969), where a member of the Klu Klux Klan was convicted for making implied threats against the government for “surpression of the White Race”, helped shape the contours of the Free speech, meaning one can easily advocate for any idea, no matter how controversial or offensive, but threatening overt acts of violence or other unlawful behavior are not considered protected speech.

Speech has also been held to be reasonably regulated as to Time, Place, and Manner- not all forms of speech are equally protected, and the Government must show significant and important reasons for restricting speech.  (An interesting side note- at large events, like the Super Bowl each year, there is often a particular area set aside to allow people to exercise their free speech rights without  interfering with the operational issues of the event.)  There are restrictions regarding public speech and private speech, as well as commercial speech.

States have long regulated commercial speech- you can’t see tobacco ads on TV anymore, and a decision in 1996, 44 Liquormart v. Rhode Island (517 US 484), limited the Government’s ability to restrict truthful, non-deceptive advertising.

What the new FTC Guidelines are attempting to do, at the heart of it, goes straight to this point- they are not trying to restrict “free speech” or private speech, instead, they are trying to regulate commercial speech and keep it truthful and non-deceptive, as they are allowed to and compelled to do under the law.

From the Free Dictionary:

A standard was first set in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). In Central Hudson the Court noted that commercial speech serves the economic interests of the speaker but also helps consumers and society overall. It outlined a four-part test for judicial evaluation of the regulation of commercial speech. First, if the commercial speech is to receive First Amendment protection, the Court must determine that it concerns a lawful activity and is not misleading. Second, the Court must determine whether the asserted government interest is substantial. Third, if the answer to the second part of the test is yes, the Court must determine if the regulation directly advances the asserted government interest. Fourth, the Court must decide if the regulation is more extensive than is necessary to serve that purpose.

Central Hudson represented a compromise between one approach that emphasized Consumer Protection and another that stressed a free marketplace of ideas. Only five justices fully joined in the majority opinion, and the viability of the test has been called into question. In Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 106 S. Ct. 2698, 92 L. Ed. 2d 266 (1986), the Court upheld a law prohibiting advertisements inviting residents of Puerto Rico to gamble legally in local casinos. Justice William H. Rehnquist emphasized Puerto Rico’s substantial interest in reducing the demand for casino gambling among its citizens and noted that the regulation at issue directly advanced this objective. In addition, he maintained that because the legislature could have banned all gambling by local residents, this legislative power included the lesser power to ban advertising of casino gambling. Justice John Paul Stevens dissented, arguing that Puerto Rico had blatantly discriminated in punishing speech “depending on the publication, audience, and words employed.”

This is an area of law that can be really complicated, but the take home message is this:

The Freedom Of Speech is not absolute, especially when it comes to Commercial Speech.  And if you are going to engage in commercial speech, including on blogs, you need to not engage in any activity that might be considered fraudulent or misleading.  Hence the rules of disclosure and Guidelines to make this easier for people to understand.

So while I understand how people think the guidelines effect their free speech rights, they have to understand that free speech is not absolute, especially where advertising, endorsements and testimonials are involved.