Commercial Speech v. Free Speech

The Bulldog Reporter wrote an article about an interesting and complex issue Congress is trying to tackle, pharmaceutical direct to consumer marketing. The Democrats want to restrict the pharmas from advertising direct to consumers, like TV or magazine ads. This issue gets to the heart of the first amendment and the right to free speech. On one hand, the government has the right to protect its citizens from misleading speech that could lead to a harm. On the other hand, these pharmaceutical companies have a right to express their beliefs that their product is the superior one in the market through DTC marketing. Although the United States is one of two countries in the world (New Zealand is the other) that allow DTC marketing, I don't think that this legislation will get passed and if it does it will be vetoed or eventually struck down as unconstitutional.

If I remember my Communications Law class from last summer correctly, Central Hudson v. Public Service Commission set forth a four-prong test for regulation of commercial speech. Let's see if this proposed regulation would pass the Central Hudson test:

1. Are the ads truthful and for a lawful product?
Well, there is already regulation against truthful ads and the products are legal, so this one doesn't really matter.

2. Does the government have substantial interest to be achieved by the restriction?
Yes, but. The government wants to protect consumers from being tricked into having diseases that require medication. Think restless leg syndrome, what a joke. However, the ads explicitly tell you talk to a physician not to go out and buy the drug. So, I'd say that the regulation passes this prong.

3. Does the regulation effectively and directly advance the issue?
Yes. A ban on DTC marketing would make a physician the only people who would recommend a medication, not television ads.

4. Could a lessened restriction serve the same interest?
No. Here's where it gets tricky. There are already regulations on what can and cannot be said in pharmaceutical ads that serve this interest. I believe that a ban on all DTC marketing would not serve the interest anymore than the regulations that already in place.

I believe that the courts have been fairly direct with this issue and any attempt by Congress to ban DTC marketing would get thrown out pretty quick.

As PR professionals, we must have an understanding of the laws in place so that we do not put ourselves or our employer in a position of liability. Furthermore, with a better understanding of law and specifically commercial speech, you can know the loopholes so you can provide your client with the best campaign the law allows.

Jonathan Schwartz is on the cutting edge of technology, but not hairstyles

For an Advanced PR Writing class, we were assigned to analyze a Fortune 500 company's blog. I chose Sun Microsystem's CEO and ponytail aficionado Jonathan Schwartz's blog. It is an interesting foray into blogging by one of the most tech savvy businessmen in the world. His blog is frequently read and cited in the media (here, here). However, I should note that I am an avid reader of Mark Cuban's Blog Maverick, which is the end all, be all of tech business CEO blogs, IMHO, and I cannot help using that as a reference in my analysis.

Overall impression: Clean layout. Not too cluttered, but enough graphics to grab my attention. Written in a conversational tone with lots of links. First impression is positive.

Ease of finding - 10: Popped up immediately on a Google search for "sun microsystems blog" and it is front and center on the Sun homepage. Sun seems to have invested quite a bit in their blog.

Frequency - 9+: Jonathan posts relatively regularly on his blog (roughly once a week). The material is fresh and he doesn't seem to "force" blog posts. He only posts when there is actually something interesting to mention. I put the plus because Jonathan's blog is just the tip of a massive iceberg that is Sun Microsystem's blogging network. Currently, there are 4,297 blogs on the network. Any employee can set up a blog about any topic with just a few clicks. It's pretty remarkable and shows Sun's commitment to community involvement in technological innovations.

Engaging writing - 7: Jonathan writes in a conversational tone, but he does not deviate from specific topics regarding the acquisitions and mergers of Sun. Granted, this is the bulk of his work, but it would be a more effective blog if he strayed from the topic and discussed issues more broadly and possibly personal issues. It is well written and gives a good insight into the rationale for many of the company's actions, but he fails to humanize himself or upper echelon of Sun's management.

Focused - 9: Jonathan gives a great insight into the actions of the mergers and acquisitions of Sun and he stays focused on that issue pretty diligently. As I just stated, he could easily veer off topic a little bit and improve his blog.

Relevant: - 8: Jonathan's blog gives great insight into Sun's corporate actions, but again if you want insight into the future of the industry or the daily life of a tech CEO, this blog is not relevant at all. However, it is very relevant for the shareholders and investors of Sun. This is a great place to understand the major steps the company you are investing in is taking. Jonathan does an excellent job of instilling confidence in Sun shareholders.

Honest - 7: I love the rationale Jonathan gives for Sun's actions, but he fails to address the drawbacks of his actions. He gives an honest account of the positives of their actions, but it would be a more effective blog if he gave recognition to people that disagreed with the company position and alleviated those concerns. Part of this is due to the fact that Jonathan does not want to present a company that is divided to its shareholders. This might cause insecurities (pun intended).

Interactive - 10: People comment frequently on Jonathan's posts, but most of the comments are by employees. As I said earlier, it is simple to create a blog on the Sun network. This interactivity shows the commitment that Sun has to OpenSource and having the entire internet community help foster innovation.

Responsive - 8: Jonathan does not respond directly to comments, but after looking a little bit he does comment on other blogs. I feel that most of the comments on his blog are positive and don't nessesitate a response.

Overall - 68/80: Again, I think that Jonathan's blog does a great job of reflecting Sun's commitment to being a transparent company, but I think that if he wants to reach out an audience besides shareholders, he should broaden the range of topics and types of posts a la Cuban or this satirical blog. Also, get rid of that effing ponytail. You look like a tool.

Here is the wiki of Fortune 500 blogs.

Never Give a Sucker an Even Break

After reading a recent story in AdWeek, I can't help but think of the W.C. Fields' classic, Never Give a Sucker an Even Break. If these people are dumb enough to fall for this ploy, so be it. C'mon folks, you've got read everything with a critical eye, especially on the internet. I thought it was a clever ploy for this organization to garner awareness about its members' interest to stop copyright infringement. Furthermore, who got hurt by this anyway? The integrity of the fake student blogger? No. The integrity of Coach for creating awareness of the issue and increasing value to shareholders? No. The integrity of the entire blogosphere? Perhaps. But, creating some banal code of ethics will not solve the problem. It is up to the consumer to decipher who benefits from said action and if the benefactor has the means to affect the story. It is clear that the purse industry would benefit from a rally against counterfitters and they definitely had the means to make this.

Blogs are not and will never be transparent. If this fake blogger would have revealed her agenda, she would have immediately been revealed as the fraud that she is and no one would have visited her site. She was doing what she needed to do to promote her respective cause. I would argue that most traditional media outlets are guilty of the same journalistic sins. If the talking heads on CNBC revealed exactly what stocks they were personally investing in, one might second guess their recommendations too. (I'll leave my rant on CNBC for a coming post). So, we must take in what people blog about, babble about on CNBC, or write on the front page of the NY Times and critically analyze it by looking at who benefits from what is being said. And if you don't, the media and blogosphere will continue to never give a sucker an easy break.

On that note, I'd like to share with you what I feel blogs were actually put on earth for....sharing funny YouTube videos:

A Gambling Problem

A recent UnSpun post describes the struggles of working in a PR agency. I have to agree with UnSpun that agency life is not easy, but he fails to address what I feel are the main drawbacks to working in an agency as opposed to an in-house position.

Working in an agency, I feel removed from the stakes of the client's reputation. My personal reputation and my company's reputation are on the line with every one of our campaigns, but when it comes down to it, I'm playing poker with some one else's chips. I want to win the pot for my client, so I could gain more clients and grow the business. However, I always know that if I get beat, it's not my chips. I will do my job with due diligence and provide my contractual obligations, but after that what's my motivation? Motivation may be hard in an in-house position too, but agency practitioners are one more step removed.

This is kind of an elephant in the room. The agency I'm working at is a little different because we only work with socially responsible causes: nonprofits, education advocacy groups, public policy, etc. This motivates me because I believe in the social change these groups are trying to enact, but I have some clients that I could not care less about. How do you get yourself or your employees to play poker with Microsoft's or ExxonMobil's chips? (Besides a fat paycheck, of course)

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The struggles of China to quell the public relations disaster that is the Olympic Torch relay are snowballing out of control. Public Relations Rogue explains how China made some critical mistakes in understanding the 21st century media machine. This is expected from a nation that never really had to do public relations. The Chinese government controls the media in a way that the Bush Administration can only dream. Internationally, China's public relations has been "no comment" for the past 5000 years. I agree with the Public Relations Rogue in that the Chinese have no idea what they're getting themselves into with the Olympics.

After the pro-Tibet demonstrations during the Paris leg of the relay (they attacked a woman in a wheelchair, see photo), there has been anti-French protests, which the Chinese have tried to claim as radical, but as with 90 percent of stories from China, you can only take them at face value. They've been controlling the domestic media to think that the world is against them and the Chinese people believe it. Good luck welcoming people to your country with open arms in August.

Therein lies the problem. How does a nation (or any organization) gain credibility when it's been so grossly incredible for literally thousands of years?

PS: The top photo is a billboard from Reporters without Border's phenomenal anti-Olympics campaign. The imagery is great. Kudos to that marketing team. Those billboards were all over France.