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Harvard Law Review: FTC Blogger Guidelines ‘Unconstitutional’

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In a new report, The Harvard Law Review says the FTC’s recently revised, “Guides Concerning the Use of Endorsements and Testimonials in Advertising” are unconstitutional.

The guidelines read in part, “bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.”

The FTC told PRNewser in late March that they there have not been any cases brought for failure to disclose. The Harvard Law Review report says, in part:

The Guides treat blogger endorsements as advertisements and attempt to regulate them as such. Unlike other speech, advertising is considered commercial speech and thus receives reduced First Amendment protection… Consumers should be wary of government policies that favor one form of media over another. Government discrimination among media forms based on “editorial independence” is unprecedented. The Court has already ruled that the government may not legally prescribe editorial standards for newspaper; to do so would violate the First Amendment by interfering with newspapers’ “exercise of editorial control and judgment.” Yet the principle underlying the Guides is that the FTC may distinguish between blogs and newspapers based on its perceptions of “editorial responsibility.” Even if bloggers are, on average, less “editorially responsible” than print media, allowing the government to favor certain media forms would allow it to manipulate the “marketplace of ideas” just as direct interference with editorial content would.”

An FTC spokesperson declined to comment to PRNewser.

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