• by Wendy Davis , Staff Writer @wendyndavis, October 6, 2009

For as long as marketers have used the Internet, they have arranged for shill reviews, created fake blogs, or paid bloggers for positive posts.

One would hope that Web users don't believe every glowing critique they read, but if people are still falling for the Nigerian spam scam, they're probably also getting drawn in by astroturf sites.

Now, in an attempt to squelch some of the worst practices, the Federal Trade Commission just issued new guides to testimonials and endorsements. But these guides, however well intentioned, make untenable distinctions between traditional media and the Internet.

In a portion of the guides addressing review copies, the FTC says that bloggers should disclose the receipt of free merchandise, but that people who write for news organizations need not do so.

Why the difference? The FTC seems to think that professional news organizations -- but not citizen journalists -- can be trusted to self-regulate in this area. Certainly, some newspapers have policies forbidding writers from accepting swag. But plenty of publications don't think twice about reviewing a book after receiving a free copy, or writing about a movie after attending a free screening. And some newspapers and magazines allow journalists to review a hotel after going on a travel junket, or write about a restaurant after accepting a free meal.

Likewise, some citizen journalists and stand-alone bloggers probably accept swag, while others purchase merchandise with their own money and then write about it.

There's an even broader problem with the FTC's new guides: They potentially violate bloggers' free speech rights. It's one thing for the FTC to tell companies not to astroturf. Such a mandate might somewhat restrict companies' First Amendment rights, but commercial speech is subject to more regulation than non-commercial speech.

Surely, however, a citizen journalist's book review, or critique of a video game, shouldn't be considered a form of commercial speech -- regardless of whether the blogger received a review copy for free.

The FTC isn't alone in attempting to craft different rules for professionals as for citizen journalists. Consider, various state legislatures have enacted shield laws that protect the confidentiality of professional journalists' sources, but not those of citizen journalists. Congress also is considering enacting a federal shield law that wouldn't protect the sources of unpaid bloggers.

Nonetheless, imposing different standards on writers based on their status -- professional journalist vs. unpaid blogger, for instance -- seem arbitrary and outdated in this age of online self-publishing. If the government is going to regulate swag, there's no reason to treat people differently based on whether they draw a salary from news organizations or self-publish for free.