Anarchic Consumer Protection

I'd be more convinced if you'd rewrite to include a response to the obvious free speech concerns. The FTC jurisdiction is limited not by the accident of legislation but by constitutional requirement. So false advertising in connection with sale of goods in interstate commerce could be regulated regardless of whether the source is disclosed, and risk-averse businesses will avoid coming near the limit of liability if they believe there is any possibility of interference, which is why exemplary enforcement largely works. Fifty state attorneys-general plus the FTC plus the varieties of private enforcement (like the false advertising rule wrt drugs) is not trivial given the past record of exemplary enforcement.

So the issue is the relevance of the past to the future given the present, which is what our issue usually is. But you take us instead into the inquiry of whether we ought to loosen the false advertising principle without inquiring first into whether we can. Opinion is constitutionally protected, and this applies to liability regimes beyond defamation. The rational relation calculus of regulatory intervention seems inappropriate. And none of your logic is capable of surviving the exacting scrutiny of interference with fundamental right. Seems to me you have not carried a basic burden of your argument.

Perhaps you can. Whether or no, it seems to me you might well have chosen instead to apply yourself to what is essentially a rule-skeptic's question: if exemplary enforcements against fraudulence and more-speech remedies under community control in the age of free communication against bogosity which is annoying but not fraudulent aren't sufficient to keep the problem more or less unstably at bay, why aren't they? And why would some administrative scheme of dubious constitutionality perform any better?

-- EbenMoglen - 15 Nov 2008