In many ways the limits on commercial speech make sense, we don't want people selling snake oil claiming it is the cure for cancer. Certainly that is an extreme and doesn't suggest the same is true of good-faith product endorsement on IG without disclosure, but the same potential for abuse exists, especially on highly regulated products that have very specific advertising regulations (i.e. alcohol and tobacco) that might be advertised in good faith.
I think one of the most bizarre applications to date is the Martha Stewart case. During her insider trading case, she actually picked up new charges for securities fraud because throughout the insider trading case she continually proclaimed her innocence. Now I think if Free Speech protects anything, it should protect our ability to proclaim our innocence publicly when the government charges us with a crime; however, the new charges alleged she proclaimed her innocence with the specific intent of artificially and fraudulently propping up the stock of the Martha Stewart company. These new charges carried up to 20 years, but ultimately the prosecutors dismissed them when she was found guilty and sentenced for the insider trading charges. It would have been a very interesting case from a legal perspective.
1- If your company had an asset (Martha Stewart's brand) that you know is about to become a lot less valuable, saying "the asset will not become less valuable", when you know that to be a lie, should be considered fraud.
2- clearly, if charged with a crime, you have a right to speak out and proclaim your innocence.
Two fundamental things that are opposed to each other. Which should win out?
>you have a right to speak out and proclaim your innocence.
This isn't so clear. You have a right to not proclaim your guilt, but you exercise that right by not speaking. The right against self-incrimination does not permit lying.
The law has long recognized certain situations in which you're not allowed to lie - while making sworn testimony, while being interviewed by federal investigators, etc. People can and do go to jail for lying to the effect of "I didn't do it" even if the trial on the original charge doesn't result in a conviction.
Speaking to the public in a way that influences securities prices is another one of those situations where lying is illegal.
>You have a right to not proclaim your guilt, but you exercise that right by not speaking.
Your point is well received, and I am going to be a little pedantic only because I find the topic so interesting to flush out...
Defendants have an absolute right to plead "Not Guilty" in a court of law to charges against them (e.g. they can't remain silent as to how they plead to the charges). So let me just acknowledge I am being pedantic, because you are referencing testifying which is separate from a defendant's plea which I am referencing. But it is still an open expression of Not Guilty in the Court, but it just doesn't waive ones right to not testify or otherwise open up a defendant for cross-examination. Further, it goes without saying we don't tack on additional charges of perjury/obstruction of justice when a defendant pleads Not Guilty to a crime for which they are later found guilty.
Separately, a Defendant charged with a crime can 100% maintain their right not to testify(right against self-incrimination) with investigators and in the courts...all while simultaneously defending themselves in public without giving up those rights (though those statements could be used in the case).
I think Stewart's speech was somewhat limited more than a typical shareholder/officer/director of a company facing a criminal charge. Normally being in such a corporate capacity still wouldn't trigger securities fraud for public deceleration of innocence against criminal charges. I just think in her case, as someone else mentioned, Stewart the individual is essentially the brand/value of the company. For example, Stewart likely was shareholder/board member in a number of corporations at that time but her public comments only triggered securities charges as to the one corporation synonymous with Martha Stewart when her statements of innocence really were entirely unrelated to the company (it's not like she said don't sell stock in the Martha Stewart company because I am innocent).
Legality isn't equivalent to morality, and that principle stands whether discussing something direct like drug persecution or emergent like this particular contradiction.
If such a case were decided in a way that constrained the government, the government would simply try again later with a slightly modified argument. Eventually, they would get a judge that wrote them a justification.
Given the government's propensity to gradually erode rights in this manner, the Bill of Rights is best thought of as a bunch of unit tests to help determine whether the government is still legitimate. I personally think it jumped the shark a while ago, but it's your job to come to your own decision.
Unfortunately, precedent-based law purports that its precedents carry the status of universal truths, rather than just the somewhat arbitrary decisions they were. So after the current contradictory system has fallen apart, many of the justifications that broke it will soon find themselves adopted by its fresh replacement.
>Unfortunately, precedent-based law purports that its precedents carry the status of universal truths, rather than just the somewhat arbitrary decisions they were.
No doubt it is far from perfect in practice, but which one(s) is(are) and why?
For example, I don't know if Common Law is any better or worse in practice (not even sure how that would really be measured) than the Civil Law system, but I always thought it is a little overly ambitious to think we could codify a rule to be applied to every possible factual situation before they occur in a statute, whereas the Common Law system assumes that we can't do that, so it acknowledges there will be cases of first impression (sets of facts we haven't applied to the law before) which will create new law (precedent) to be applied to future cases with similar facts. I do know Louisiana is the only State to have a hybrid of Common/Civil Law (due to French influence), honestly I don't know a thing about it in practice, but no other State has been convinced to adopt it and they haven't been convinced to drop it either.
>So after the current contradictory system has fallen apart
Our Common Law system is based on the old English Common Law system, so it goes back to the Norman Viking Conquests (~1100). Since the start, we have obviously developed an extensive body of case law and for the most part we rarely cite the old English Common Law cases any more, but it is still a 1,000 year old legal system. It is another very interesting question, can a legal system even change from Civil Law to something else without a full change in Government? For example, could Louisiana even drop its Common Law/Civil Law hybrid and join the 49 other States, or could another State drop their Common Law system for Louisiana's hybrid, and if so what does that transition look like? Just reading your sentence, I have to say it sounds ominous, as in system fall apart doesn't mean Common Law legal system but the entire rule of law (US Government, Bill of Rights, etc...), admittedly I am reading into what you meant and maybe it would be no difficult task to just move away from Common Law and maintain continuity of everything else.
Scooter Libby is a big one in the last few years. His underlying crime was disclosing classified information, but he wasn't convicted of that - he was convicted for the story he told denying it.
Libby was not guilty of the disclosure, and the prosecutor knew it from the beginning, but kept going after him, possibly in the hope of getting some dirt on the Vice President.[1] They questioned Libby repeatedly on a subject that the prosecutor already had good information on (which vindicated Libby), until Libby said something incorrect, which contradicted a previous statement, then went after him for that. At least one of the lead witnesses has come out against the prosecution and conviction, which has been described as one of the worst cases of prosecutorial overreach in recent memory.
> At least one of the lead witnesses has come out against the prosecution and conviction, which has been described as one of the worst cases of prosecutorial overreach in recent memory.
That description has got to be one of the worst politically-motivated distortions of reality in recent memory. At worst, the Libby prosecution was one of the worst cases of prosecutorial overreach targeting a wealthy and politically-connected white male by a prosecutor of the same political party in recent memory. Without all those restrictions, its a pretty routine display of how prosecutors go after suspected participants in organized criminal activity who they believe are protecting bigger targets.
What made this especially bad was that the prosecutor knew from the start that Libby was innocent (of disclosing Plame's identity). If that had not been the case, I might agree with you that this was comparable to a prosecutor going for leverage against a low-level criminal.
One could draw a difference between lying about concrete facts, as Libby did, and merely proclaiming innocence in general. Though in some cases they may be difficult to distinguish.
If I were to question you repeatedly over a period of months about the same events (which were not particularly significant to you), I would expect some inconsistencies in your version of events, even if you were trying to be truthful.
You can just reference the Martha Stewart case from the parent.
3 of the 4 charges Martha Stewart was found guilty of were for "I didn't do it" + a conspiracy charge.
That is two counts of making false statements to a federal officer and one count of obstruction of justice.
All together she was guilty of planning to do something, lying about doing it (x2), and making it difficult to prosecute her. She wasn't found guilty of doing the actual thing (which if she had been truthful to the SEC likely would have only resulted in financial penalties).
Lying to federal law enforcement (and local law enforcement in most or all jurisdictions) is also a crime, even if you're not under oath. If the FBI knocks on your door and asks if your neighbor committed a particular crime and you say no, and then they can prove that you know he did, you can go to prison. Though I imagine that they often decide against pursuing charges in such cases.
That's why the only answer you ever give to ANY LEO is, "I don't speak to law enforcement without my attorney present." Not a routine traffic stop of course, unless you like being hassled.
If you're guilty or for some reason don't want to divulge what you know (and there are legitimate reasons for that), sure.
But most of us, the overwhelming majority of the time, want to see law enforcement succeed and have nothing to conceal. If there's a robbery next door, I'm going to very happily tell the cops absolutely everything I saw and heard.
Edit: I'm surprised that this post is unpopular. Do you really want to live in a world where people don't help law enforcement find violent criminals?
I can tell you've never experienced the "Robbery next door", because you'd have been deeply underwhelmed with the response. Certainly canvassing the neighborhood isn't a part of it! Now putting aside that fantasy, in the real world most of us encounter police in one of three broad situations:
1.) Traffic stops and accidents.
2.) "Public order" issues (protests, large events, etc)
3.) As victims or perpetrators of a violent crime.
Most of us won't be either side of the equation in #3, virtually all of us will experience #1, and a large proportion will experience #2.
It's also possible that some of us understand that while many good LEO's exist, the bad ones are too damned dangerous and protected by the silence of the good ones. There are also competence, "War on Drugs" and other issues.
edit: Also, just ask literally any attorney what you should say, including those who have nothing at all to do with criminal defense. Then ask them why they all give the same answer as my original post...
I grew up in a large urban area, Miami, and this did in fact happen a couple times. There was a crime committed in the surrounding homes and police came to our door to see if we had any information that could help them.
An attorney is going to tell you what's 100% in your legal interests, since that's their duty. There's always a chance that you say something that incriminates you or reveals that you committed some other crime or similar.
But that's not the only consideration. There's also concern for the well-being of your community, a desire to make it safe for your children, etc. Acting on those interests can supersede the tiny risk that a law abiding citizen takes when speaking to law enforcement.
I'm sure it did, for a violent crime, various drug crimes, etc that's pretty typical. For a house being robbed? A little less typical to interview more than the homeowners, unless there's a reason to suspect the involvement of a neighbor, or they had a security camera/propensity for being nosy.
Remember, the person I responded to was talking about a home robbery, and so was I. Obviously you have to use your own judgement, and if it's the local PD asking about a missing person or a domestic incident, etc, don't be a dick.
About 7 years ago I had the FBI show up at my office and ask me all sorts of weird and leading questions. Not knowing any better I answered them the best I could.
The FBI agents then told me they'd be calling the DA to press charges and have me arrested for lying to a federal agent unless I completely cooperated with them in an investigation and offered them full access to my phones, my home and all my computers.
It is very likely in your best interest to avoid speaking with law enforcement.
The problem is that a lot of people see the police not as a group that protects the people, but one that enforces the law and/or puts people in jail. With the former, you can assume the police will "do the right thing" if possible, because they want the best outcome for the people. With the later, you can assume the well-being of the average citizen is not the concern of the police.
You can probably assume that the wellbeing of people is the concern of many small-town, and generally local LEO's. Most people don't decide to be a beat cop in a suburb because of a power trip (that type dreams of a city), or to solve major crimes; they just want to help people. Unfortunately, they're not most LEO's, and they're not interacting with people where the most crimes are committed.
The problem is more to do with the "average", and the system as a whole. We have a prison industry, terrible public defense, increasingly permissive treatment of fairly shady information gathering, and increasing militarization in urban areas.
The other issue is that Officer Friendly might not shake you down, beat you up, or screw you over. He might shut up and look the other way when Officer Hairy F. Knuckle does though. Blue Wall and all. That's hard to prove or even discuss, but it's painfully real.
Nah, see your downvoters know something you don't. Your neighbor is actually in cahoots with the cops, and staged the robbery, so that you would allow the police into your home for an interview, so that they could plant evidence and arrest you. ;)
Or maybe they have a friend or relative who dated a cop, or maybe they're black in the US in general, be disturbed by the trend of violent policing and excessive imprisonment, worried by the 'blue wall of silence' and its nasty persistence, maybe they went to law school or know someone who did... Lots of reasons that aren't comedy routines to use as strawmen you know.
IANAL but it seems to me that free speech always loses to fiduciary responsibility and SEC disclosure requirements because those are all responsibilities you pick up with your own free will.
FWIW, she was convicted of obstruction of justice and lying to investigators, not insider trading, but I think that even furthers your point about derivative charges.
Yes you are right. To be more accurate, I should have said convicted of some of the charges on the underlying insider trading case not the insider trading charges (as you note, not for the actual count of insider trading itself but the accompanying charges).
I may have subconsciously done that because the counts she was convicted of blur with new charge and I wanted to distinguish the underlying case/charges with the new charge which was triggered by claiming innocence of the underlying case.
Good, and I hope it has lasting effects on the approach to advertising in the modern era. I'm sure the system will be imperfect, but the push-pull of the "Ad Biz" is something I've learned first hand. You know, the fine print.
GI JOE SKY STRIKER JET DOES NOT ACTUALLY FLY
Personally I like to know when somebody is acting as a paid shill. In that vein I feel my endorsements - at this time uncompensated in any fashion (DistroKid, Ernie Ball strings, Agile Guitars) - have value. I speak from personal authority, not because somebody cut me a check or sent freebies.
I'm not a big spender, so I try to treat my public endorsements as genuinely worth something because if I'm willing to pay for it myself, and I believe in the product, then that's what the point of talking about things is in word-of-mouth business! If I get an opportunity to "test" something without paying, I'm going to disclose that right away. It just feels...ethical...Every once and a while I watch the Aqua Teen Hunger Force episode "Boost Mobile" and soak in the delicious mockery of celebrity endorsements. YMMV.
Or, for any who think the FTC is maybe over-stepping a bit, let's consider the other avenue that gets talked about as a "First Amendment" adjacent issue: Astroturfing.
Where do you think the line should be drawn? I mean - say your band does great (if you have one / if it isn't already ;-)). You choose Ernie Ball strings and an Agile Guitar and play the hell out of them. You accumulate a million fans on Instagram. A ton of photos show you with the guitar / string combo. Now Ernie Ball says "we want to pay you [number] per year to just use our strings!" You love Ernie so are happy to take their cash. Do all your IG pics now need an endorsement line?
What if then a new guitar brand asks to you to use their guitars? And they're amazing. You'd use them for free anyway... Etc.
I think the lines are blurry. But I agree - the celebrity promoting the teeth whitening rebill to eager teens probably needs to point out their teeth are white for a different reason.
I think the line can be unambiguously drawn at whether or not the celebrity is receiving money as payment to post something. In the example you've described, things posted before the band had a deal with Ernie Ball don't need the endorsement line, while things posted as part of the contract do.
The point here is to give people true information to make an educated buying decision. People can look back and see that you used Ernie Ball strings when it wasn't part of a contract. And now that you have a contract with Ernie Ball, they can make an educated decision whether they believe that you're still using the product because you like it or whether you are just using it now because you are paid to.
This creates an incentive for companies to create a good product that people will promote on their own, rather than creating a bad product and paying people to promote it.
there is still some ambiguity over whether all these kinds of contracts need to be revealed to the public. If nike pays a basketball player to only wear nike shoes but never asks him to speak or post anything about nike does he have to reveal that contract or what if he does not receive any money nike just starts sending free shoes to basketball players with no strings attached should they have to reveal they are only wearing the shoes because they got them for free? what about if a youtuber just receives free stuff to review? do they have to reveal that they received the items for free?
To answer that with a question, what taxes will each party declare? Is it a gift with no string attached, or a trade of goods for services? When it comes to taxes, this kind of distinction is often very important.
The Swedish tax authority has several documents on how they judge such cases, and in general, a company doing this is unlikely to be seen as a "no strings attached" gift. If it comes from an advertisement budget, someone somewhere is expecting a return on investment.
Just wanted to note that you addressed this first and I hope that I added a little something to your point with my response. You touched on a very relevant point.
So I think you might benefit from a bit of commercial business dealings that offer context: The NFL has an exclusive contract with Nike. A player, Robert Griffin III, signed an independent endorsement with Adidas. That means to do his job, RGIII could only wear Nike branded shoes on the field. He protested by taping over the Nike logo when he was out on the practice field, as a point of principle.
The league - his employer - reminded him of the conditions of his employment. There was nothing preventing him from wearing Adidas from HEAD TO TOE as long as it wasn't in a direct situation sponsored by his employer. Thus, he actually had TWO sponsorships in some terms.
He wanted to wear his Adidas on the field, but was not allowed, even though it was completely above the board. So, where do you draw the line? Can your employer tell you what brand of clothing to wear? If he got the shoes for free, should RGIII be allowed to undermine the other contract?
My perspective is that the line of reasoning you present is inherently flawed. Are you not aware that Nike essentially got its foothold (pun intended) by giving away shoes to college basketball programs and people who probably couldn't afford to buy them? It was covered in an ESPN 30 for 30 so there's the citation.
From your context it sounds like you believe - maybe it's my interpretation - that things given to celebrities for free are "no strings attached" and I think that's been proven wrong time and again. Contracts, handshake deals, they don't work that way. There's either an explicit (preferred) or implied (bad) debt to be paid. It takes time to learn how these systems work, and woe to those who might minimize their practical implementations.
Oh, and a Youtuber who receives free stuff better disclose it, because if they're in the US, then they have the IRS to deal with. The IRS doesn't screw around with compensation. Dollars or donuts, keep the receipts[1]!
[1] Excluding Mitch Hedberg, who accurately pointed out a donut in regular guy life does not need a receipt.
Very good questions and I like what you're sorting out, implication wise! I think in the first scenario, yes, every photo I take myself and post to my own accounts should have a small caption or watermark that lists my sponsors. Ernie Ball, the Guitar brand, whatever - I think it's genuinely a point of pride to be endorsed, and it's a goal for a lot of serious players. Getting a band or player's name on the back of a pack of Ernie Ball strings, to me, would be an achievement I would proudly acknowledge.
The second scenario is one that again I'd draw the line at my own accounts. If I like the brand and they give them to me for free, then I'll disclose it because, well, it's a sponsorship by them. The "would've bought it anyway" kind of feels like a rationalization to me. A lot of things I like I can't afford, so posturing it as such wouldn't be honest in my book.
I think an analogy might be like how NASCAR drivers have a ton of sponsor patches on their racing uniforms.
So, Jeff Gordon for instance - if he makes an IG post where he's changing the oil in his personal car, not wearing his racing outfit, but acting like "Just a normal dude like you!" and prominently holding a quart of Valvoline, I think that should get a tag because it's a grey area. Not everybody knows his race team and his career is sponsored by Valvoline, but if he shows that his sponsorship extends to his "personal life" then yeah, put the tag on there.
I'll definitely agree that the imperfect system / blurry distinctions take some discussion, but I'm glad to have a chance to hash this kind of logic out.
This falls under not taking 'free' stuff. If you want to be a paid spokesman fine, just admit that's what your doing even when you are just accepting stuff.
Having a company rule where staff can't accept free lunches from other companies is surprisingly valuable. 'Free' things are often really expensive.
Hm. I feel like you should always disclose paid endorsements, even for things you would have endorsed for free. My favorite gaming news site, Rock Paper Shotgun, typically has a disclosure line if the writer knows or has worked with the game creator, even if they would have reviewed and enjoyed the game regardless. Even an honest reviewer can be unconsciously swayed--that's why "free stuff" for reviewers (food, event tickets, crazy press events) is such an ethics issue.
I think you have made it pretty clear. In scenario one, the second you take money from a brand you are promoting, it becomes an endorsement and you should let your audience know. in scenario two, if you use the guitars for free, cool, but if you switch because of an monetary agreement or somewhere down the road you are paid then it is an endorsement.
It's an interesting one for sure. I wonder how it would apply to Hip Hop, for instance. Rapper has deal (money/product/whatever) with a brand and endorses them through song. We don't really have liner notes anymore, but it's clearly paid promotion. I appreciate this isn't a 'post', but the article talks about sitcoms. And if you take music as 'art', there's probably a case where you could argue your instagram/video/whatever was 'art'.
Rapper: YO YO YO, Mister Clean has it all, I use it before I ball, check it.
Fast speaking car commercial voice (quietly in background): Paid for by Mister Clean enterprises inc, the views in this song do not represent Mister Clean.
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?
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."
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?
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.
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.
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.
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?).
> 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.
Do you see any distinction between mandatory disclosure of compensation for endorsements, and mandatory disclosure of interest when recommending a stock?
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.
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.
>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).
The "marketplace of ideas" meme (along with many of what Americans consider to be First Amendment Free Speech protections) came into jurispridence in a 1919 dissent by Oliver Wendell Holmes in Abrams v. United States in which Holmes defended free speech rights based on the "marketplace of ideas" concept proposed by among others John Stuart Mill. Who was distinctly tardy to the Founding Fathers table.
The concepts are curiously intermingled with much of the reformulation and representation of Adam Smith's ideas which took place over the 20th century, also generally misunderstood by the lay public thanks to an aggressive 60+ year marketing campaign by the Mont Pelerin Society and Atlas Network. But that's another rant.
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.
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.
>There is no infringement of free speech going on.
Sure there is. If they're taking money, they're not free to endorse without the requirement that they also disclose the payment.
That said, while we can certainly argue about what's reasonable at the margins, the government has a well-established (qualified) power to regulate commercial speech in particular--first amendment notwithstanding. You can't knowingly make false statements of fact in an ad.
There also already exist a variety of disclosure rules although these get into a much more gray area, especially given that you have everything from outright pay-for-play celebrity endorsement deals to giving bloggers free stuff to review. And, in general I agree that disclosure of things that could lead to conflicts of interest is very reasonable and not overly burdensome.
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.
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.
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.
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.'
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.
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.
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...
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."
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.
> 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.
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.
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.
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.
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.
I'm skeptical of the FTC's position here. In particular, I fail to see the difference between social posts and traditional product placements.
> A character on a sitcom drinking a Diet Pepsi isn’t giving their personal opinion about the soda, and the actor is playing a character.
A celebrity is also playing a character. Also, if they're filtering the choices of what to endorse based on their personal views (as many of the influencers are), doesn't that make it less of an ad?
I also don't see why a "#sponsored" hash tag is not enough. Anyone who cares can understand hash tags.
> I also don't see why a "#sponsored" hash tag is not enough. Anyone who cares can understand hash tags.
I didn't see any complaint in the article about a "#sponsored" tag. I did see complaints about "#sp" and "#spon", which are opaque if the reader is not already familiar with what they mean.
> The FTC thinks #ad is okay if it's at the beginning of a post, but #sp and #spon aren't.
> Users need to be clear when they're getting paid to promote something, and hashtags like #ad, #sp, #sponsored --common forms of identification-- are not always enough.
The quote I included made it pretty clear that #ad was conditionally acceptable if it prefixes the message. It also made it clear that #sp and #spon are never sufficient. I saw no further notes on #sponsored, but my common sense would group it with #ad if I had to choose between the two options presented.
> Also, if they're filtering the choices of what to endorse based on their personal views (as many of the influencers are), doesn't that make it less of an ad?
A distinction is useful because it allows people to categorize for themselves what they think is a worthwhile sponsership. It's adding information to the market which wasn't present (or was hard to acquire) beforehand, which is always useful.
For a simple example, imagine an endorsement of makeup by Kim Kardashian, and a shop tool by Adam Savage. Initially you believe they are using the products because they like them and think they work well. Now you learn they were paid endorsements. Do you provide the same level of confidence to the suggestions of these two people based on paid endorsements that you do if they are not paid for those endorsements? I don't. One of them I trust to care about their integrity and reputation with respect to this, the other I do not.
> I also don't see why a "#sponsored" hash tag is not enough. Anyone who cares can understand hash tags.
Because the whole world isn't twitter, and hash tags don't always make sense. how do you hash tag a segment of a podcast?
I wouldn't trust an endorsement of anything from Kim Kardashian regardless of whether it was paid or not.
For me at least, this is largely self-policing. The people and sites who I would actually trust in purchasing decisions would take pains to disclose any compensation regardless of whether the FTC mandates it. Trust is a market.
> Because the whole world isn't twitter, and hash tags don't always make sense. how do you hash tag a segment of a podcast?
Obviously you should use a medium-appropriate disclosure. My issue is that the FTC seems to believe that "#sponsored" isn't even appropriate for platforms where hashtags are used (like Instagram).
>My issue is that the FTC seems to believe that "#sponsored" isn't even appropriate for platforms where hashtags are used (like Instagram).
The argument that a hashtag should qualify as proper disclosure is without merit IMO.
Posts on social media are covered in hashtags, sometimes more than twenty hashtags are used on Instagram.
A well-hidden #sponsored hashtag buried in between, or even under, several variations of #YOLOSWAG and #drinksprite sounds nothing like proper disclosure.
In a lot of (most) circumstances, disclosures are inherently going to be pretty buried.
In a video, they're probably going to be somewhere in small print in the credit roll at the end. For example it's pretty standard practice to have a standard disclaimer related to product placement.
And even when journalists and others have a link to a detailed disclosure statement, how many people actually click through to read that.
I generally favor transparency but the reality is that most disclosures are always going to be effectively footnotes and 99% of the time people won't notice them or will just ignore them.
> In a video, they're probably going to be somewhere in small print in the credit roll at the end.
When you have small print in a video, I think that itself is a good indication of how commercial it is, so I don't really think that's a problem. If celebrities end up having to include small print in posted images, well, I think we'll understand pretty quickly how commercial and sponsered it is.
> And even when journalists and others have a link to a detailed disclosure statement, how many people actually click through to read that.
Generally I see them as a postscript on the article, not as links (unless the link is to give more detailed information).
> I generally favor transparency but the reality is that most disclosures are always going to be effectively footnotes and 99% of the time people won't notice them or will just ignore them.
That presumes that the only benefit of this is in that people immediately notice the sponsorship. There are other benefits though, which is that other people and notice the sponsorship and disseminate the information more prominently.
As I say, I strongly favor disclosure even when it's not front and center. My only caveat to people is to not assume that disclosure renders moot all conflicts of interest and other biases.
There is an extremely fine line here. The people who make real money based on "endorsements" are business owners. They favor companies in which they receive some sort of benefit, whether implicit or not. The people who will suffer most from this are those hustling to make it, not the heavyweights.
Hip hop constantly gets slapped around by sampling cases when there's money to be made (e.g. not mixtapes). Timbaland alone has around half a dozen. Even Frank Ocean got an earful from The Eagles.
I think one of the most bizarre applications to date is the Martha Stewart case. During her insider trading case, she actually picked up new charges for securities fraud because throughout the insider trading case she continually proclaimed her innocence. Now I think if Free Speech protects anything, it should protect our ability to proclaim our innocence publicly when the government charges us with a crime; however, the new charges alleged she proclaimed her innocence with the specific intent of artificially and fraudulently propping up the stock of the Martha Stewart company. These new charges carried up to 20 years, but ultimately the prosecutors dismissed them when she was found guilty and sentenced for the insider trading charges. It would have been a very interesting case from a legal perspective.