Commercial speech has recently been both vindicated and attacked. The Supreme Court has recognized that the more information consumers have, the better; as Justice Clarence Thomas wrote in a recent decision, "all attempts to dissuade legal choices by citizens by keeping them ignorant are impermissible."
But others haven't heard the word. The Food and Drug Administration and Philip Morris have both proposed advertising restrictions on tobacco. Rep. Joe Kennedy (D-Mass.), the grandson of a bootlegger, recently introduced legislation to limit alcohol advertising. Given the precedent set by the Communications Decency Act, regulation of the Internet in the name of children could be politically plausible. "The FTC can regulate almost any advertising media," says Calfee. "And they are very actively looking at the Internet."
So far, the FTC's official position is ambivalent. "This is a new area that developed a lot faster than we thought. CME's report flags and raises issues to think about," says an FTC official. The FTC is primarily concerned with "the question of how traditional consumer protection applies on the Internet." He raised concerns that sexual predators might "hack" in and obtain personal information about children under the guise of collecting marketing data. Also, "there's a long- standing public policy concern about the commercialization of children," he says. "The question right now is what combination of self-regulation [by the industry] and government regulation would be best." He does admit that "ultimately, it is the parent's job" to monitor what their children do on the Internet.
Significantly, the veracity of the information on the Web sites has not been an issue. It is advertising per se, not fraud, that the CME wants to protect children from. But they might end up protecting them from Web sites in general. "Advertising supports the Web," notes John Phillip Jones, professor of advertising at Syracuse University. "We just won't have it without ads." If the CME succeeds in forcing companies to dull down or eliminate their advertising, we would probably have to say goodbye to most of the ad-funded Web sites for children--and if the anti-advertising principle spreads in Internet regulation, possibly for adults, too. That would leave mostly government-funded sites. Talk about manipulation.
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