Ashton Kutcher v. The FTC

Ashton Kutcher
Beck Starr | FilmMagic | Getty Images
Ashton Kutcher

Ashton Kutcher’s biggest role may still be ahead of him.

The actor may wind up being a test case for how far the government can push the limits of the First Amendment when it comes to requiring disclosure.

Kutcher served as the guest editor of an online-only version of Details magazine. The special issue, called “The Social Issue,” featured a number of social media start-ups.

The New York Times notes that Kutcher is an investor in a majority of the start-ups featured in the issue. According to Gawker, Kutcher is an investor or an advisor to over a dozen companies profiled in the issue. The introduction to the issue noted that Kutcher "puts his money where his mouth is, backing many of the companies he champions here."

But it appears that some people believe that the law requires a higher level of disclosure.

From the New York Times:

Richard Cleland, assistant director of the division of advertising practices at the Federal Trade Commission, said in a phone interview that in an editorial context, people have an obligation to fully disclose their investments.

“If you’re out there promoting individual products that you have a specific investment in, it needs to be disclosed,” Mr. Cleland said.

“If you have a significant economic invdestment that is not otherwise apparent, that may potentially affect the credibility of your endorsement, and I see that as a potential problem.”

Mr. Cleland would not say whether the F.T.C. planned to question Mr.

Kutcher or Details, but noted, “It’s certainly a possibility that a case like this could be investigated.”

The Times goes on to note that Kutcher might also have run afoul of securities laws.

I hope that Kutcher doesn’t back down if faced with an investigation.

He’s got one of the best test cases for the limits of government interference with the press imaginable.

The Supreme Court has moved way past the idea that the First Amendment doesn’t apply just because there’s a connection to commerce. In fact, it may be ready to declare that there are much stricter limits to speech restrictions for any kind of truthful communication.

In this case, the SEC or the FTC would be claiming the authority to what can or cannot be published on the website of a regular magazine.

This isn’t an offering or a promotional circular. It’s a magazine’s website. This level of editorial scrutiny would break new ground in government speech restrictions.

Frankly, I doubt either the SEC or the FTC will do anything about this. The regulators know that their claims to regulate commercial speech are already pushing the boundaries of what is constitutionally tolerable. They’re unlikely to want to see those claims tested here.

Full disclosure: A few years ago I did a bit of unpaid consulting for Fashism, a mobile social shopping application in which Ashton Kutcher later became investor. Fashism was started by Brooke Moreland, the wife of Joe Weisenthal, with whom I worked at Business Insider and DealBreaker. Joe and Brooke are personal friends of mine. I’ve never met Ashton, although I really liked "A Few Good Men," a film in which his wife starred.

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