Diary

Increasing Executive Power By-Passes Due Process, Threatens Blogger Free Speech

The Obama administration is accumulating power at an amazing rate, aided and abetted by its complicit Congress, who seems hell-bent on handing over its responsibilities to the Executive branch.

This accumulation of power is un-constitutional, and is quickly reducing our liberties and free speech.

Transfer of Legislative and Judicial powers to the Executive

If you read the bills that are pouring out of this Congress, you will note the way that Progressives bypass the Constitution and public discussion of the contents (See article by Thomas Sowell).  These laws (health care, financial reform, etc.) strengthen the power of the Executive by instructing the Government to do 3 things:

  1. Set up a Board, Office or Department to make rules (“Legislative”).
  2. Execute against those rules (“Executive”).
  3. Prosecute, try and punish people who break the rules (“Judiciary”).

So in a single bill, power from the Legislative and Judicial branches passes to the Executive.  You might argue that this is how government has worked forever. Wrong!  The health care bill created over 150 “Boards, Offices or Departments”, and that had never been done since … you guessed it .. FDR.

This whole process turns the entire political system that created this country upside down!

Take a look at once example:

FCC Fines Firm for Astroturfing

PR firm Reverb Communications was hired to write favorable reviews of iPhone games on Apple’s App Store.  I don’t know about you, but I know that in the anonymous world of the Internet, that anyone can do a review of a product, and I have to take that with a grain of salt — caveat emptor.  In fact, it is why “trust” systems, like that encouraged by eBay and Amazon, add value to reviews.  They help you recognized legitimate reviewers, and trusted people, so you can separate them from the author’s brother, mother, or PR firm.

The FCC decided (in 2009 – the Age of Obama) to pass a rule that any “Consumer-generated media” would have to disclose whether or not a reviewer had a commercial link to the product/service being reviewed.  The FTC can fine you $11,000 (plus injunctions against your future reviewing!) (Read the FTC PR announcement here.)

So in a flash (and I don’t recall any public debate, and mention in Congress), the FTC lays down its “guidelines” for free speech for Advertisements, Bloggers, Celebrity Endorsements.  Yikes!  Did they mention Bloggers!?!

So, if a Blogger who works for, say the Democratic National Committee, promotes its product anonymously on a web site, they could be in violation of FEDERAL TRADE COMMISSION 16 CFR Part 255.  If you read your brother’s new book and thought it was great, a nice review could land you an $11,000 fine, if you and your brother have a “material connection”.

Would your opinion/review on ePinions.com be a violation? (as ePinions.com pays you and collects money from the advertisers).

What is a product review?  Why does the FCC decide that my speech (in this blog, for example) is acceptable , or not?

And how do they suddenly decide they can pass down a fine?  Well, to be fair, they state:

The Guides are administrative interpretations of the law intended to help advertisers comply with the Federal Trade Commission Act; they are not binding law themselves. In any law enforcement action challenging the allegedly deceptive use of testimonials or endorsements, the Commission would have the burden of proving that the challenged conduct violates the FTC Act.

However, in the Reverb case, Reverb looked for an easier (cheaper) way out, as I am sure you and I would do, when faced with a huge bureaucracy with “unlimited resources” coming at you …

Reverb agreed to the settlement terms, though the company maintains that it disagrees completely with the FTC’s allegations and admits to no wrongdoing. [my emphasis]. “During discussions with the FTC, it became apparent that we would never agree on the facts of the situation,” Reverb said in a statement released to MTV Multiplayer. “Rather than continuing to spend time and money arguing, and laying off employees to fight what we believed was a frivolous matter, we settled this case and ended the discussion.”

The journalist in ars technica also went on the say:

Still, Reverb’s potentially unfair influence on App Store buyers may not be that great. As MTV Multiplayer pointed out, only those that have downloaded a game from the App Store can review it, so it would take serious effort and a lot of paid reviewers to influence its overall rating. If a game is truly awful or truly amazing, the ratings will reflect that fact.

The Harvard Law Review published an opinion on this regulation, calling it unconstitutional.

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. 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. 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. 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 media from the Guides’ disclosure requirements. Therefore, the Guides should be ruled unconstitutional as applied to bloggers.

Yet, the first test case that the FCC has using this results in a target rolling over.  It seems like part of a plan to regulate the Internet.

We should be very concerned about this enormous accumulation of power in an uncontrolled bureaucracy.  It threatens our freedoms, and the very foundation of the country.

(Cross-posted to http://liberty.cooperusa.net/2010/08/29/increasing-executive-power-by-passes-due-process-threatens-blogger-free-speech)