4 ms·

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 dimin

by 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.
- rayiner 10y ago
  The Government: you have two options, you can say "Hilary is great!" or you can say nothing. It's not compelled speech because you have two options. Luckily, the courts do not construe the 1st amendment so narrowly.
  - reitzensteinm 10y ago
    Do you see any distinction between mandatory disclosure of compensation for endorsements, and mandatory disclosure of interest when recommending a stock?
    - rayiner 10y ago
      Yes, because the latter has a direct nexus with a commercial transaction.
  - notahacker 10y ago
    I was under the impression that, if paid for, political speech (which is the type of speech the First Amendment was intended to protect) already came with disclosure requirements that had been contested and ruled constitutional. The appropriate analogy isn't a choice between being able to say "Hillary Is Great" or nothing at all, it's a choice between having to say "paid for by Super PAC for Issue" if accepting their cash to broadcast their view on Hillary, or not accepting the cash and saying whatever you like about Hillary.
rayiner 10y ago
The long and short of it is that there are different levels of scrutiny for different kinds of speech. First, "commercial speech" is narrowly defined. It is speech that does "nothing more than propose a commercial transaction." Second, even commercial speech receives First Amendment protection, just less protection. Instead of strict scrutiny, the Court applies an intermediate standard: the law must advance an important government interest by means that are substantially related to that interest. As for the comparison with FDA labels--you can't look at just the fact that its "compelled speech" in the abstract. The back of a product box and a celebrity's instragram are very different venues in terms of expression.
- tehwebguy 10y ago
  Turn on many pop or hip-hop stations in the US in the morning and you'll hear the actual morning show host endorse all sorts of products that sound like a scam: discount cosmetic surgery, car rims for rent, accident attorneys and more. In many cases I've heard them advocate as if they've used the product or service personally and got a good deal and there's never a "paid ad" or "promoted content" disclaimer (or maybe it runs at 3 AM?).
- morgante 10y ago
  I think the murkiness of cases like this is that it's not clear that the speech is purely commercial. As someone mentioned elsewhere, it seems somewhat analogous to product placements in rap songs. There's clearly some commercial activity going on, but the root activity is also artistic—rappers would rap even if they didn't get paid for it, and celebrities would maintain social accounts even if they couldn't do product placements there. FDA labeling is generally fine, but would we force an artist doing a large edible art installation to slap nutrition labels on it? Personally, I don't really see what the big deal is. Consumers shouldn't be naive enough to buy something just because a celebrity likes it, but then again I've never understood the appeal of celebrities in the first place.
  - Paul-ish 10y ago
    There is hubris in thinking you are immune to marketing, and if anything it makes you more vulnerable to it. Celebrity isn't so easily defined. What if Bruce Schneier, who you could consider a "celebrity" of sorts in the security community, started (subtly) promoting Signal Messenger in his tweets and blog posts. Wouldn't you want to know if he was being paid to do that? This is essentially what is happening when PewDiePie promoted a video game.
kakarot 10y ago
I do not support paying taxes for a government that serves corporate interests over my own. I do however support paying taxes for a government that attempts to prevent fraudulent people from manipulating me into buying a product I would not have purchased via an honest ad. It's that simple. When our founding fathers established the 1st Amendment, they were not setting out to protect liars but those who speak the truth.
- will_brown 10y ago
  >When our founding fathers established the 1st Amendment, they were not setting out to protect liars but those who speak the truth. The 1st Amendment was specifically designed to protect both truths and falsehoods so they could both enter the marketplace of ideas in order to allow the people to determine what is truth and the best ideas. Moreover, the Founding Father's were keenly aware of people in power suppressing ideas commonly held to be false, but ultimately turned out to be true (i.e. the earth is not the center of the universe).
  - GFK_of_xmaspast 10y ago
    The time of Galileo and his troubles was further away from the time of the constitutional convention than the Civil War is from us.
    - will_brown 10y ago
      i.e not e.g. Galileo's troubles as you call them, was an example of false speech the new Government wanted to protect and be allowed to enter the marketplace of ideas. Moreover, I was not suggesting Galileo was the reason for the 1st Amendment. Also, I am not exactly sure what the distance of the Civil War to today has to do with the distance of time from the drafting of the Constitution and Galileo. Seeing as the Founding Father's modeled the new Government off of the Roman Republic (509BC-27BC), they were more than capable of applying more modern history lessons taught by the Catholic Church and Royal Crown which they wished to avoid repeating.
  - dredmorbius 10y ago
zaidf 10y ago
Is misleading speech for commercial gain protected speech? If it is, then I can sell you a fake Rolex while stating that it is a real Rolex. Because my speech is protected, I can mislead and profit without consequences.

by count 10y ago

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.
rayiner 10y ago
The Government: you have two options, you can say "Hilary is great!" or you can say nothing. It's not compelled speech because you have two options. Luckily, the courts do not construe the 1st amendment so narrowly.
- reitzensteinm 10y ago
  Do you see any distinction between mandatory disclosure of compensation for endorsements, and mandatory disclosure of interest when recommending a stock?
  - rayiner 10y ago
    Yes, because the latter has a direct nexus with a commercial transaction.
- notahacker 10y ago
  I was under the impression that, if paid for, political speech (which is the type of speech the First Amendment was intended to protect) already came with disclosure requirements that had been contested and ruled constitutional. The appropriate analogy isn't a choice between being able to say "Hillary Is Great" or nothing at all, it's a choice between having to say "paid for by Super PAC for Issue" if accepting their cash to broadcast their view on Hillary, or not accepting the cash and saying whatever you like about Hillary.

rayiner 10y ago

The long and short of it is that there are different levels of scrutiny for different kinds of speech. First, "commercial speech" is narrowly defined. It is speech that does "nothing more than propose a commercial transaction." Second, even commercial speech receives First Amendment protection, just less protection. Instead of strict scrutiny, the Court applies an intermediate standard: the law must advance an important government interest by means that are substantially related to that interest. As for the comparison with FDA labels--you can't look at just the fact that its "compelled speech" in the abstract. The back of a product box and a celebrity's instragram are very different venues in terms of expression.

tehwebguy 10y ago
Turn on many pop or hip-hop stations in the US in the morning and you'll hear the actual morning show host endorse all sorts of products that sound like a scam: discount cosmetic surgery, car rims for rent, accident attorneys and more. In many cases I've heard them advocate as if they've used the product or service personally and got a good deal and there's never a "paid ad" or "promoted content" disclaimer (or maybe it runs at 3 AM?).
morgante 10y ago
I think the murkiness of cases like this is that it's not clear that the speech is purely commercial. As someone mentioned elsewhere, it seems somewhat analogous to product placements in rap songs. There's clearly some commercial activity going on, but the root activity is also artistic—rappers would rap even if they didn't get paid for it, and celebrities would maintain social accounts even if they couldn't do product placements there. FDA labeling is generally fine, but would we force an artist doing a large edible art installation to slap nutrition labels on it? Personally, I don't really see what the big deal is. Consumers shouldn't be naive enough to buy something just because a celebrity likes it, but then again I've never understood the appeal of celebrities in the first place.
- Paul-ish 10y ago
  There is hubris in thinking you are immune to marketing, and if anything it makes you more vulnerable to it. Celebrity isn't so easily defined. What if Bruce Schneier, who you could consider a "celebrity" of sorts in the security community, started (subtly) promoting Signal Messenger in his tweets and blog posts. Wouldn't you want to know if he was being paid to do that? This is essentially what is happening when PewDiePie promoted a video game.

kakarot 10y ago

I do not support paying taxes for a government that serves corporate interests over my own. I do however support paying taxes for a government that attempts to prevent fraudulent people from manipulating me into buying a product I would not have purchased via an honest ad. It's that simple. When our founding fathers established the 1st Amendment, they were not setting out to protect liars but those who speak the truth.

will_brown 10y ago
>When our founding fathers established the 1st Amendment, they were not setting out to protect liars but those who speak the truth. The 1st Amendment was specifically designed to protect both truths and falsehoods so they could both enter the marketplace of ideas in order to allow the people to determine what is truth and the best ideas. Moreover, the Founding Father's were keenly aware of people in power suppressing ideas commonly held to be false, but ultimately turned out to be true (i.e. the earth is not the center of the universe).
- GFK_of_xmaspast 10y ago
  The time of Galileo and his troubles was further away from the time of the constitutional convention than the Civil War is from us.
  - will_brown 10y ago
    i.e not e.g. Galileo's troubles as you call them, was an example of false speech the new Government wanted to protect and be allowed to enter the marketplace of ideas. Moreover, I was not suggesting Galileo was the reason for the 1st Amendment. Also, I am not exactly sure what the distance of the Civil War to today has to do with the distance of time from the drafting of the Constitution and Galileo. Seeing as the Founding Father's modeled the new Government off of the Roman Republic (509BC-27BC), they were more than capable of applying more modern history lessons taught by the Catholic Church and Royal Crown which they wished to avoid repeating.
- dredmorbius 10y ago

zaidf 10y ago

Is misleading speech for commercial gain protected speech? If it is, then I can sell you a fake Rolex while stating that it is a real Rolex. Because my speech is protected, I can mislead and profit without consequences.