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It would be enlightening to trace the development from the 1st Amendment to the FTC having the power to implement regulations like this. Are these dangerous pro

It would be enlightening to trace the development from the 1st Amendment to the FTC having the power to implement regulations like this. Are these dangerous products? Do they fraudulently promise benefits? Are they targeting minors?

ISL 10y ago
Agreed. While the Supreme Court has sensibly concluded that there should be limits to free speech (see 'The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action.'[1]), it would be interesting to understand how the legal argument that begins with the postulate: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. can yield, 'We believe consumers put stock in endorsements and we want to make sure they are not being deceived.' [1] https://en.wikipedia.org/wiki/Brandenburg_v._Ohio https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
- cmdrfred 10y ago
  While I agree that the constitutional interpretation is flawed here. It seems we have thrown[0] it[1] out[2] the[3] window[4] for the most part. [0]https://www.aclu.org/issues/criminal-law-reform/reforming-police-practices/asset-forfeiture-abuse https://www.aclu.org/issues/criminal-law-reform/reforming-po... [1]https://www.thefire.org/college-students-protest-against-so-called-free-speech-zones-at-their-campuses-saying-that-they-violate-their-first-amendment-rights/ https://www.thefire.org/college-students-protest-against-so-... [2]https://en.wikipedia.org/wiki/Federal_Assault_Weapons_Ban https://en.wikipedia.org/wiki/Federal_Assault_Weapons_Ban [3]https://en.wikipedia.org/wiki/Internment_of_Japanese_Americans https://en.wikipedia.org/wiki/Internment_of_Japanese_America... [4]https://en.wikipedia.org/wiki/PRISM_%28surveillance_program%29 https://en.wikipedia.org/wiki/PRISM_%28surveillance_program%...
- dragonwriter 10y ago
  That's because you forgot several other "postulates" that form part of that legal argument. Among them (this is not an exclusive list) are the Commerce Clause of the Constitution, and various canons of legal construction, including the one that holds that while a newer enactment generally has precedence over an older one, to the extent possible a newer enactment should also be read so as not to minimize conflict with an older one unless it explicitly seeks to reverse the effect of the older one.
lmkg 10y ago
There is no infringement of free speech going on. Celebrities are free to make endorsements, paid or otherwise. Companies are free to market their products in this fashion. The only requirement is that paid endorsements are labeled as such, which is not cumbersome or "chilling."
- count 10y ago
  Forced speech, such as labeling, is an infringement on free speech (ie. the right to be silent). Arguably, such labeling would also defeat the purpose or diminish the entirety of such advertisements, which infringes on the speech of the advertiser AND of the celebrity. Devils advocate says that FDA mandates labels on food...which is also compelled speech that may be disadvantageous to producers. How is this different?
  - chimeracoder 10y ago
    > Forced speech, such as labeling, is an infringement on free speech (ie. the right to be silent). We already have plenty of restrictions on speech (the most well-known ones being slander and libel, but also plenty of regulations around speech that comes in the form of advertising specifically). In this case, you still have two options: a) make the post, but also reveal that it was paid for, or b) don't make the post It's not really forced speech when you still have two options, and one of them includes 'not saying anything'. It's also a pretty reasonable argument to make that making the paid post but not disclosing it is misleading, and there are already all sorts of laws restricting misleading speech in advertising. Also, this only kicks in if the post is commercial - ie, if money changes hands. To give a "bright line" counterexample, it doesn't restrict celebrities from making posts about their favorite products if they have had no communication with the company at all.
    - cmdrfred 10y ago
      You forget option c. c) Don't get paid for the post and simply support the product because you believe in it.
    - 10y ago
jonhohle 10y ago
I don't see a significant conflict of interest. Nothing stops a celebrity or influencer from saying they love Foo Brand Widgets. The FTC is saying in the context of a business transaction which involves a company paying another individual to say that they love Foo Brand Widgets, there must be disclosure. I could see not disclosing as a form of fraud. I also don't see it as significantly different from labels the FDA requires on food packaging.
- joecool1029 10y ago
  Is there any court precidence for cases of failure to disclose? Fraud is really a stretch... Consider puffery: https://en.wikipedia.org/wiki/Puffery https://en.wikipedia.org/wiki/Puffery
  - blowski 10y ago
    If Company A Laptops secretly paid Mr Celebrity to say he only uses Company A laptops, and then I buy a Company A laptop because I want to use the same brand as Mr Celebrity, then I could argue that Company A have engaged in deceptive marketing. If they are up front about having paid Mr Celebrity, it seems to mitigate that a bit, because it's clearly a 'puff piece' (as your link says) instead of claiming to be true. IANAL. Obviously. But that's my layman's take on it.
    - slang800 10y ago
      I would argue that it's your fault for trusting Mr Celebrity to give you good laptop recommendations. If Mr Celebrity's reputation isn't crippled by making a bad recommendation or two then you're picking the wrong people to advise you.
  - sliverstorm 10y ago
    Are paid endorsements really puffery? Basketball players sponsored by Nike don't wear Nike shoes ironically. (A comedy advert, like the Terry Tate: Office Linebacker campaign, seems closer to puffery)
cloudjacker 10y ago
Do they have a history of settlements with various conditions that masquerade as case law? Yes.
sjtgraham 10y ago
Valentine v. Chrestensen: First Amendment does not protect “purely commercial advertising.”
- count 10y ago
  What if they actually love the product, AND happens to be paid for it? ie: already drink a specific type of liquor, liquor company finds out and offers to sponsor them...
  - cgriswald 10y ago
    Which probably makes this difficult to enforce. Agent meets with advertiser. No promises are made. Celebrity posts about loving product. Then advertiser sponsors them. Defense: "I like the product and was doing this to help get the job."
- rayiner 10y ago
  That case was overturned by: https://en.wikipedia.org/wiki/Virginia_State_Pharmacy_Board_v._Virginia_Citizens_Consumer_Council https://en.wikipedia.org/wiki/Virginia_State_Pharmacy_Board_....
  - sjtgraham 10y ago
    Thanks. Glad to have an actual lawyer appear at times like these :) So is this legal?
    - rayiner 10y ago
      Right now the boundary for restrictions on commercial speech seems to lie right around labeling for GMOs. Calorie labeling is okay because its purely informational, factually neutral, and has a direct link to a real concrete government interest. GMO labeling is on the border because there is a strong political element to it, and there is no proof GMOs (unlike too many calories) are actually bad and therefore it does not implicate a government interest. I would think the FTC's action is substantially over that line.
belorn 10y ago
Is FTC cracking down on celebrity posts in general, or are they cracking down on companies which celebrities are self-employed in, and that sell advertisement? Companies are made of people, and people have human rights. However, in order to have any market regulations at all, we need to limit what companies can say and do. As such we normally separate what people do in the name of a company, and what people do as a private citizen. For example, we expect police to speak and act in a specific way when acting as policemen, but they are completely free to write and say anything under the 1st Amendment when not on duty and representing the police force.
- MrMullen 10y ago
  > Companies are made of people, and people have human rights. Companies are a fictitious, they are not natural, they don't exist without people or laws and they exist only to serve the betterment of society. Just because humans have right does not mean companies do. > For example, we expect police to speak and act in a specific way when acting as policemen, but they are completely free to write and say anything under the 1st Amendment when not on duty and representing the police force. Poor example. Police are public servants and don't work for companies, they work for society and all of society and how they behave off duty is an excellent reflection of how they would behave on duty. If a police officer posts racist Facebook posts, they can and should be fired.
  - oldmanjay 10y ago
    Companies are groups of people acting in concert toward goals. There is very little that is more natural for social primates like humans to do. Your distinction and definitions are the real fiction.
    - tunap 10y ago
      I agree with this definition. Additionaly, these same groups of people should be held accountable in a court of law for crimes performed/delegated from behind the facade of a "corporate" entity.
dec0dedab0de 10y ago
Another thing is that there is no way to %100 enforce this, so this gives the FTC the ability to pick and choose who is targetted. Seems ripe for corruption to me. I think a better service would be to provide a credibility rating service, where people can vote on a celebrities endorsement history. Though there's no money from fines in that.
colechristensen 10y ago
I think the authority is firmly routed in the commerce clause of the constitution, and that it is perfectly reasonable for it to be so. The difference is speaking your mind and being paid to. The first amendment is not a license to do or say anything for any reason.

ISL 10y ago

Agreed. While the Supreme Court has sensibly concluded that there should be limits to free speech (see 'The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action.'[1]), it would be interesting to understand how the legal argument that begins with the postulate: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. can yield, 'We believe consumers put stock in endorsements and we want to make sure they are not being deceived.' [1] https://en.wikipedia.org/wiki/Brandenburg_v._Ohio https://en.wikipedia.org/wiki/Brandenburg_v._Ohio

cmdrfred 10y ago
While I agree that the constitutional interpretation is flawed here. It seems we have thrown[0] it[1] out[2] the[3] window[4] for the most part. [0]https://www.aclu.org/issues/criminal-law-reform/reforming-police-practices/asset-forfeiture-abuse https://www.aclu.org/issues/criminal-law-reform/reforming-po... [1]https://www.thefire.org/college-students-protest-against-so-called-free-speech-zones-at-their-campuses-saying-that-they-violate-their-first-amendment-rights/ https://www.thefire.org/college-students-protest-against-so-... [2]https://en.wikipedia.org/wiki/Federal_Assault_Weapons_Ban https://en.wikipedia.org/wiki/Federal_Assault_Weapons_Ban [3]https://en.wikipedia.org/wiki/Internment_of_Japanese_Americans https://en.wikipedia.org/wiki/Internment_of_Japanese_America... [4]https://en.wikipedia.org/wiki/PRISM_%28surveillance_program%29 https://en.wikipedia.org/wiki/PRISM_%28surveillance_program%...
dragonwriter 10y ago
That's because you forgot several other "postulates" that form part of that legal argument. Among them (this is not an exclusive list) are the Commerce Clause of the Constitution, and various canons of legal construction, including the one that holds that while a newer enactment generally has precedence over an older one, to the extent possible a newer enactment should also be read so as not to minimize conflict with an older one unless it explicitly seeks to reverse the effect of the older one.

lmkg 10y ago

There is no infringement of free speech going on. Celebrities are free to make endorsements, paid or otherwise. Companies are free to market their products in this fashion. The only requirement is that paid endorsements are labeled as such, which is not cumbersome or "chilling."

count 10y ago
Forced speech, such as labeling, is an infringement on free speech (ie. the right to be silent). Arguably, such labeling would also defeat the purpose or diminish the entirety of such advertisements, which infringes on the speech of the advertiser AND of the celebrity. Devils advocate says that FDA mandates labels on food...which is also compelled speech that may be disadvantageous to producers. How is this different?
- chimeracoder 10y ago
  > Forced speech, such as labeling, is an infringement on free speech (ie. the right to be silent). We already have plenty of restrictions on speech (the most well-known ones being slander and libel, but also plenty of regulations around speech that comes in the form of advertising specifically). In this case, you still have two options: a) make the post, but also reveal that it was paid for, or b) don't make the post It's not really forced speech when you still have two options, and one of them includes 'not saying anything'. It's also a pretty reasonable argument to make that making the paid post but not disclosing it is misleading, and there are already all sorts of laws restricting misleading speech in advertising. Also, this only kicks in if the post is commercial - ie, if money changes hands. To give a "bright line" counterexample, it doesn't restrict celebrities from making posts about their favorite products if they have had no communication with the company at all.
  - cmdrfred 10y ago
    You forget option c. c) Don't get paid for the post and simply support the product because you believe in it.
  - 10y ago

jonhohle 10y ago

I don't see a significant conflict of interest. Nothing stops a celebrity or influencer from saying they love Foo Brand Widgets. The FTC is saying in the context of a business transaction which involves a company paying another individual to say that they love Foo Brand Widgets, there must be disclosure. I could see not disclosing as a form of fraud. I also don't see it as significantly different from labels the FDA requires on food packaging.

joecool1029 10y ago
Is there any court precidence for cases of failure to disclose? Fraud is really a stretch... Consider puffery: https://en.wikipedia.org/wiki/Puffery https://en.wikipedia.org/wiki/Puffery
- blowski 10y ago
  If Company A Laptops secretly paid Mr Celebrity to say he only uses Company A laptops, and then I buy a Company A laptop because I want to use the same brand as Mr Celebrity, then I could argue that Company A have engaged in deceptive marketing. If they are up front about having paid Mr Celebrity, it seems to mitigate that a bit, because it's clearly a 'puff piece' (as your link says) instead of claiming to be true. IANAL. Obviously. But that's my layman's take on it.
  - slang800 10y ago
    I would argue that it's your fault for trusting Mr Celebrity to give you good laptop recommendations. If Mr Celebrity's reputation isn't crippled by making a bad recommendation or two then you're picking the wrong people to advise you.
- sliverstorm 10y ago
  Are paid endorsements really puffery? Basketball players sponsored by Nike don't wear Nike shoes ironically. (A comedy advert, like the Terry Tate: Office Linebacker campaign, seems closer to puffery)

cloudjacker 10y ago

Do they have a history of settlements with various conditions that masquerade as case law? Yes.

sjtgraham 10y ago

Valentine v. Chrestensen: First Amendment does not protect “purely commercial advertising.”

count 10y ago
What if they actually love the product, AND happens to be paid for it? ie: already drink a specific type of liquor, liquor company finds out and offers to sponsor them...
- cgriswald 10y ago
  Which probably makes this difficult to enforce. Agent meets with advertiser. No promises are made. Celebrity posts about loving product. Then advertiser sponsors them. Defense: "I like the product and was doing this to help get the job."
rayiner 10y ago
That case was overturned by: https://en.wikipedia.org/wiki/Virginia_State_Pharmacy_Board_v._Virginia_Citizens_Consumer_Council https://en.wikipedia.org/wiki/Virginia_State_Pharmacy_Board_....
- sjtgraham 10y ago
  Thanks. Glad to have an actual lawyer appear at times like these :) So is this legal?
  - rayiner 10y ago
    Right now the boundary for restrictions on commercial speech seems to lie right around labeling for GMOs. Calorie labeling is okay because its purely informational, factually neutral, and has a direct link to a real concrete government interest. GMO labeling is on the border because there is a strong political element to it, and there is no proof GMOs (unlike too many calories) are actually bad and therefore it does not implicate a government interest. I would think the FTC's action is substantially over that line.

belorn 10y ago

Is FTC cracking down on celebrity posts in general, or are they cracking down on companies which celebrities are self-employed in, and that sell advertisement? Companies are made of people, and people have human rights. However, in order to have any market regulations at all, we need to limit what companies can say and do. As such we normally separate what people do in the name of a company, and what people do as a private citizen. For example, we expect police to speak and act in a specific way when acting as policemen, but they are completely free to write and say anything under the 1st Amendment when not on duty and representing the police force.

MrMullen 10y ago
> Companies are made of people, and people have human rights. Companies are a fictitious, they are not natural, they don't exist without people or laws and they exist only to serve the betterment of society. Just because humans have right does not mean companies do. > For example, we expect police to speak and act in a specific way when acting as policemen, but they are completely free to write and say anything under the 1st Amendment when not on duty and representing the police force. Poor example. Police are public servants and don't work for companies, they work for society and all of society and how they behave off duty is an excellent reflection of how they would behave on duty. If a police officer posts racist Facebook posts, they can and should be fired.
- oldmanjay 10y ago
  Companies are groups of people acting in concert toward goals. There is very little that is more natural for social primates like humans to do. Your distinction and definitions are the real fiction.
  - tunap 10y ago
    I agree with this definition. Additionaly, these same groups of people should be held accountable in a court of law for crimes performed/delegated from behind the facade of a "corporate" entity.

dec0dedab0de 10y ago

Another thing is that there is no way to %100 enforce this, so this gives the FTC the ability to pick and choose who is targetted. Seems ripe for corruption to me. I think a better service would be to provide a credibility rating service, where people can vote on a celebrities endorsement history. Though there's no money from fines in that.

colechristensen 10y ago

I think the authority is firmly routed in the commerce clause of the constitution, and that it is perfectly reasonable for it to be so. The difference is speaking your mind and being paid to. The first amendment is not a license to do or say anything for any reason.