Why the FTC's truth in blogging guidelines are truly terrible

Think fast: Which government agency is in charge of regulating journalistic ethics?

Okay, sorry, that's a trick question; there isn't one. Or at least it would've been a trick question prior to Monday, when the Federal Trade Commission appointed itself to that role by adopting a new set of guidelines governing product endorsements.

The guidelines were conceived, in part, as a response to a supposed plague of shady bloggers who are taking money or other types of compensation from marketers, and then turning around and plugging those marketers' products without disclosing the compensation to readers.
As it happens, this is not strictly a digital-age phenomenon. Every journalist knows of colleagues who too enthusiastically accept gifts, giveaways, expensive meals, all-expenses-paid trips and the like. We have many names for these people: swag hags, freebie queens, whores, shills. But they are still journalists -- crappy journalists, to be sure, but journalists.

Unless, decrees the FTC, those crappy journalists happen to do their crappy journalism for websites rather than newspapers or magazines. Under the new guidelines, bloggers who accept free products and then write nice things about those products are making endorsements. They're engaging in advertising, not journalism, and if they don't tell readers about the compensation they accepted, they're guilty of false advertising and subject to prosecution.

This is a neat little bit of legal prestidigitation. The FTC has no authority to regulate speech unless it's commercial speech, so, in order to assert jurisdiction over bloggers it doesn't like, it simply redefines their activities as commercial speech.

But why not, then, using that logic, also define the activities of ink-and-paper writers who take freebies and go on fancy junkets as commercial speech? Why not require them to disclose when a product was supplied for free to a reviewer? Because, says the FTC, "traditional media" outlets have a legacy of editorial independence. "Under these circumstances," declare the guidelines, "the Commission believes, knowing whether the media entity that published the review paid for the item in question would not affect the weight consumers give to the reviewer's statements."

In other words, consumers trust newspapers and magazines, so it's not necessary for the writers who work at them to behave in a transparent manner. Consumers don't know if they can trust bloggers, so bloggers need to put themselves above suspicion.

This is incoherent bullshit. The FTC's job is to protect consumers. Aren't consumers at more risk of being led into folly by outlets they trust than by outlets they're skeptical of?

There's also a major definitional problem. The FTC guidelines use the terms "blogs" and "consumer-generated media" interchangeably, but they're far from synonymous. Plenty of bloggers work for those "traditional media" entities consumers trust so much. Take me, for instance. I work for one of the world's biggest media companies, but the outlet I write for is indisputably a blog. Before this, I wrote a blog published on the website of a print magazine. Did that make me a blogger or a traditional journalist? What about professional journalists who contribute to a blogging site like True/Slant, that pays them? What about amateurs who blog for the Huffington Post, an increasingly corporate entity? There's no end to the permutations.

The FTC's response to all this would be: Calm down. We're not looking to prosecute every self-styled Web hack who breaks the rules, just the serial offenders, the ones with real influence. "As a practical matter, we don't have the resources to look at 500,000 blogs," an agency official tells CNET. "Right now, we're trying to focus on education."

To that, I would respond: Since when do we give government agencies broad new powers in the expectation that they'll be used sparingly and judiciously? It may be there are some unsophisticated consumers out there who can't tell genuine criticism from sponsored flackery and who have spent money on shoddy products because of it. So be it. The Constitution doesn't empower the government to protect people from their own stupidity. It does, however, guarantee the right to free speech.

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