Attention Must Be Paid: Commercial Speech, User-Generated Ads, and the Challenge of Regulation

Tushnet analyzes the regulatory challenges posed by user-generated advertising and social media marketing, examining how commercial speech doctrine applies to consumer-created promotional content online. The article explores the blurred boundaries between authentic consumer expression and sponsored advertising when platforms and brands encourage user participation in commercial campaigns. Tushnet examines FTC regulation of endorsements and disclosures, tracing how traditional advertising rules apply to user-generated content including testimonials, reviews, and influencer posts. The author argues that regulating user-generated advertising requires nuanced approaches distinguishing between authentic consumer speech and compensated commercial speech, while respecting free expression. Tushnet discusses the practical challenges of identifying who controls advertising messages when content creation involves consumers, brands, and platforms jointly. The article examines international regulatory approaches and proposes frameworks balancing consumer protection through clear advertising disclosures against commercial speech rights and authentic consumer expression. Tushnet contends that effective regulation requires understanding how social media transforms advertising relationships and maintaining appropriate oversight mechanisms.

Keywords: user-generated content · advertising · FTC regulation · endorsements · social media marketing · commercial speech