They Probably Aren't Very Good Shoes

Moveon.org and Common Cause recently wrote a letter petitioning the FTC to investigate Fox News's use of the term "Fair and Balanced" to refer to itself. Their original letter is here and provides a pretty intense legal analysis of the situation.  Yesterday, the FTC released the following brief statement from the Chairman, responding to the request:

I am not aware of any instance in which the Federal Trade Commission has investigated the slogan of a news organization. There is no way to evaluate this petition without evaluating the content of the news at issue. That is a task the First Amendment leaves to the American people, not a government agency.

Of course, this is a pretty specious argument. It may be that the FTC has not investigated a news slogan, but perhaps no news outlet has so blatantly advertised that it is something when it is so clearly not that something.

The statement further suggests that it would be unable to address the slogan without analyzing the content (no question there), but that the First Amendment will not allow them to (not so clear cut).  I mean, that doesn't really make any sense, does it? Any false advertising claim requires an analysis of what the product offered actually is, unless it's some kind of blatant a priori assertion: "The consumption of Kibblings makes four and four equal nine!" The First Amendment bars the elimination of free speech (generally, although not false commercial speech); it doesn't bar the analysis of free speech.

I can understand an argument that would say that "fair and balanced" is an iffy standard, and can't really be determined to be false in the objective way that "Shoes - $12.95" can be.  But this isn't the analysis presented. Chairman Timothy Muris says that the FTC can't analyze the content of the speech. Ludicrous.

I don't suppose this should be surprising. Clearly, the initial petition was a political act, and so, it seems, is the response (from a Bush appointee, 140-ish days from an election). But the two acts don't balance out. Moveon.org's petition was grounded in fact and law. Even if the timing is political, the accusations are accurate and at least deserve a review. Muris's response is facially inaccurate and is a black mark on the face of a government agency that should be acting to earn respect.