University of Southern California

The Media that Need Citizens: The First Amendment and the Fifth Estate

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Article by Adam Cohen
From Volume 85, Number 1 (November, 2011)

The Federal Trade Commission (“FTC”) adopted new disclosure rules in 2009 for “consumer-generated media.” The “Guides Concerning the Use of Endorsements and Testimonials in Advertising” warn bloggers, people who post on social networking sites, and other generators of new media content that they must disclose when they receive payments or free products related to what they write about. Failure to disclose material connections can result in fines of up to $10,000 for each violation.

The FTC endorsement rules do not apply to journalists who work for newspapers, magazines, or television and radio stations. When the guides were released, new media journalists protested that the government was creating a two-tiered regulatory regime that singled them out for unfavorable treatment. Jack Shafer, the media critic for Slate, called the rules “preposterous” and denounced “[t]he FTC’s [m]ad [p]ower [g]rab.”

The FTC defended the guides’ different rules for different kinds of media. The FTC, which has statutory authority to combat advertiser fraud, insisted that journalistic organizations that have “independent editorial responsibility” are more trustworthy than those without it. If a journalist must respond to someone higher up in a hierarchy, the FTC reasoned, there was minimal danger of corruption from receiving material support. To anyone who has followed journalism for the last half century, the logic is hard to defend. In the FTC’s view, the crusading journalist I.F. Stone, laboring away in solitude on I.F. Stone’s Weekly, would have been presumed corruptible if he received a review copy of a new book. Glenn Beck, whose entreaties to his audience to invest in gold may have been driven by personal financial gain, would have no duty to disclose so long as the producers of Fox News or a right-wing radio network back him up.

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