Recently, the Federal Trade Commission (FTC) revised their Endorsement and Testimonial Guides (Guides) to cover “consumer generated media” such as blogs and other internet media forms.1 In the interest of providing consumers with full disclosure, the Guides require bloggers to disclose any “material connection[s]” they have with producers of any products that they “endorse” on their blogs.2 A “material connection” includes not only monetary compensation, but also any free good received by the blogger — even if that good was provided unsolicited, with no conditions attached, for the purpose of allowing the blogger to review the product.3 Yet a constitutional analysis of unpaid blogger endorsements shows that such endorsements are not commercial speech — which receives reduced constitutional protection — but rather noncommercial speech entitled to full First Amendment protection. Not only do the Guides burden bloggers’ protected speech, they also create an unfair double standard by exempting legacy media4 from the Guides’ disclosure requirements. Therefore, the Guides should be ruled unconstitutional as applied to bloggers.
There is much more in the short HLR comment. The FTC Guidelines are available here.