Internet Famous_ Are Online Influencers and Micro-Celebrities Pub.pdf

Missouri Law Review Volume 88 Issue 3 Article 7 Summer 2023 Internet Famous: Are Online Influencers and Micro-Celebrities Public Figures Under Defamation Law? Frank D. LoMonte Stephanie J. Leibert Follow this and additional works at: https://scholarship.law.missouri.edu/mlr Part of the Law Commons Recommended Citation Frank D. LoMonte and Stephanie J. Leibert, Internet Famous: Are Online Influencers and Micro-Celebrities Public Figures Under Defamation Law?, 88 MO. L. REV. (2023) Available at: https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub Internet Famous: Are Online Influencers and Micro-Celebrities Public Figures Under Defamation Law? Frank D. LoMonte* and Stephanie J. Leibert** ABSTRACT Social media and video-sharing sites have introduced the concept of “micro-celebrity,” a person who attains fame – rapidly, and potentially fleetingly – among a niche audience of internet users for doing something colorful. As with anyone who participates in the sometimes sharp-elbowed give-and-take of online discourse, these niche celebrities are increasingly being drawn into controversies that can result in litigation. For nearly 60 years, the Supreme Court’s Sullivan standard has afforded critics an extra measure of breathing space when they comment on the conduct of “public” personalities – people with outsized influence, and the ability to defend themselves effectively through counterspeech. The question courts increasingly will be forced to reckon with is: What does it mean to be “public” in an era when otherwise-obscure people can become “internet famous” overnight? This Article examines how courts might analyze libel claims brought by people whose “public” status is limited to an avid following on social media. It discusses the rise of “influencer culture,” in which people purposefully cultivate an online audience in hopes of monetizing their fame to endorse goods or services, or to gain attention for a cause. And it looks at how courts have analyzed the status of “limited purpose” public figures, based on judges’ (sometimes-unpredictable) understanding of what it means to seek to leverage the public dialogue to influence a matter of public * Senior Academic Fellow, Center for Governmental Responsibility, University of Florida Levin College of Law. Adjunct Instructor, University of Georgia School of Law. Legal Counsel, Cable News Network, Inc. J.D., University of Georgia School of Law, 2000. B.A., Georgia State University, 1992. ** LL.M., Columbia Law School, 2023. M.A., Manhattanville College Graduate School of Education, 2010. J.D., Maurice A. Dean School of Law, Hofstra University, 2007. B.A., Barnard College of Columbia University, 2004. Published by University of Missouri School of Law Scholarship Repository, 2023 1 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 716 MISSOURI LAW REVIEW [Vol. 88 controversy. In light of established libel principles, the authors argue that – if the touchstone of public-figure plaintiff status is fairness – it is fair to hold a plaintiff to a heightened legal burden if that person has placed their trustworthiness at issue by seeking the limelight, even if only to sell cosmetics. The Article concludes that it is essential for the Supreme Court – which set enduring ground rules for libel cases in a era when newspaper editors and network TV anchors were the gatekeepers of fame — to clarify what it means for a person to become “public” and to be involved in a “public controversy,” now that public discourse reaches well beyond newspaper pages and TV screens, into topics far afield from politics and human rights. https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 2 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 717 TABLE OF CONTENTS ABSTRACT ................................................................................................... 715 TABLE OF CONTENTS................................................................................... 717 I. INTRODUCTION ......................................................................................... 718 II. LIBEL AND PUBLIC FIGURES ................................................................... 720 III. ONLINE CULTURE AND THE RISE OF THE “MICRO-CELEBRITY” ........... 725 A. Social Media: “The Modern Public Square” .................................. 726 B. Power, Influence, and Regulatory Pushback ................................... 727 C. Macro-Influencers vs. Micro-Influencers ........................................ 730 IV. “PUBLIC ENOUGH?”: DOES INSTAGRAM FAME TRANSLATE IRL? ........ 731 A. Does Online Fame Equate to “Access to Media?” ......................... 733 B. Is Online Marketing a “Public Controversy?” ............................... 735 C. Call-Out Culture” and the Proliferation of Online Accusations .... 738 D. Gertz on the ‘Gram: Applying Old-School Standards to NextGen Speech .................................................................................... 741 E. A Sliding Scale of Internet Fame? ................................................... 744 V. CONCLUSION........................................................................................... 747 Published by University of Missouri School of Law Scholarship Repository, 2023 3 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 718 MISSOURI LAW REVIEW [Vol. 88 I. INTRODUCTION After viewing a social-media video in which a same-sex Texas couple welcomed the birth of their baby via surrogate mother, right-wing political commentator Lauren Witzke recirculated the video with her own vitriolic denunciation of adoption by same-sex couples, calling them “pedophiles” guilty of “human trafficking.”1 The parents responded to Witzke with a defamation suit.2 In an intriguing twenty-first century twist, Witzke, a former Republican nominee for the U.S. Senate,3 is not the only party in this case with a high public profile. One of the fathers bringing suit, Eric Vaughn, has built a following of more than 500,000 on the video-sharing platform TikTok, where some of his posts have received “millions” of views.4 Facing impending litigation, Witzke did not let Vaughn’s socialmedia fame go unnoticed, using her Twitter account to call him a “public figure” who invited commentary about his family life.5 Is he? Is the proprietor of a hair salon who attains a degree of online recognition within a social-media platform really a “public figure” in the legal sense? What consequences might that status have for the ability of Vaughn, or other people whose fame exists within the bubble of a social networking site, to protect their reputations by way of litigation? The question of what it means to be a “public figure” in contemporary online culture is one that courts will increasingly need to address. Defamation law puts prominent individuals in public life into a lessprotected category, assigning them a higher burden to prevail in a case asserting reputational harm. The explosion of online publishing—and in particular social-media—has enabled more people than ever before to build a niche audience of followers, challenging the traditional concepts of “celebrity” around which libel law evolved.6 1 Esteban Parra, Couple Sues Lauren Witzke for Saying Birth of Their Surrogate Twins is ‘Human Trafficking,’ DEL. ONLINE (Mar. 27, 2023, 4:55 AM), https://www.delawareonline.com/story/news/2023/03/27/lauren-witzke-sueddefamation-parents-surrogate-twins-human-trafficking/70037086007/ [https://perma.cc/Y464-KW6V]. 2 Id. 3 Tal Axelrod, Conservative Activist Lauren Witzke Wins GOP Senate Primary in Delaware, THE HILL (Sept. 15, 2020, 10:59 PM), https://thehill.com/homenews/campaign/516619-conservative-activist-lauren-witzkewins-gop-senate-primary-in-delaware/ [https://perma.cc/6A2W-ZFB5]. 4 Parra, supra note 1. 5 Lauren Witzke (@LaurenWitzkeDE), X (Mar. 19, 2023, 6:08 PM), https://twitter.com/LaurenWitzkeDE/status/1637576808261472256 [https://perma.cc/6PAA-6W43]. 6 See Hadley M. Dreibelbis, Social Media Defamation: A New Legal Frontier Among the Internet Wild West, 16 DUKE J. CONST. L. & PUB. POL’Y 245, 248 (2021) https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 4 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 719 This article analyzes what, predictably, will be a recurring question as the notion of “celebrity” in contemporary online culture becomes increasingly malleable: What degree of online recognition must an “internet famous” person achieve to qualify under prevailing libel-law standards as a “public” persona?7 Are the legal standards adopted during the paper-and-ink era adequate to conform to the social-media era, where people attain widespread recognition and influence without ratification by mainstream publishers, producers, or other traditional opinion-making gatekeepers? Section II provides a brief survey of the law of “public figure” status for purposes of defamation claims, describing how—in the pre-social media era—courts assessed whether a libel plaintiff met the definition of a “limited” public figure.8 Section III looks at how the disruptive force of online communication and social media has transformed the publishing industry and the way people promote products. Section IV takes the legal principles described in Section II and applies them to analyze how courts might treat defamation claims brought by “influencers” who use socialmedia to gain recognition and, at times, leverage that recognition for commercial gain. Finally, Section V underscores the need for the Supreme Court to clarify threshold questions about what it means to be a public figure, including what constitutes a “public controversy,”9 and whether it is possible to become a public figure by attaining niche fame within an increasingly fragmented audience. (commenting that social media platforms “allow users to express themselves without the oversight of editorial gatekeepers” and “democratized speech and thus expanded opportunities for exposure,” thus opening up more opportunities for defamation to occur). 7 The earliest documentable use of “internet famous” in mainstream media appears to be a Canadian news blog, Torontoist, which applied the term to an online cartoonist who had attained a niche following. Karen Whaley, Tall Poppy Interview: Ryan North of Dinosaur Comics, TORONTOIST (May 17, 2006). NPR subsequently used the term to refer to an artist who achieved notoriety for creating hand-drawn imitation record albums, adopting the stage name “Mingering Mike.” Xeni Jardin, The Search for Mingering Mike, NPR DAY TO DAY (May 10, 2007). 8 See Daniel P. Dalton, Defining the Limited Purpose Public Figure, 70 U. DET. MERCY L. REV. 47, 52 (1992) (explaining libel-law concept of plaintiff who is not pervasively famous and regarded as “public” only to the extent that plaintiff voluntarily takes active role “in a public issue in a manner intended to gain public attention”). 9 See Lerman v. Flynt Distrib. Co., 745 F.2d 123, 138 (2d Cir. 1984) (explaining that, for defamation-law purposes, concept of “public controversy” means “any topic upon which sizeable segments of society have different, strongly held views”). Published by University of Missouri School of Law Scholarship Repository, 2023 5 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 720 MISSOURI LAW REVIEW [Vol. 88 II. LIBEL AND PUBLIC FIGURES Beginning with the Supreme Court’s landmark Sullivan decision, libel law has long recognized that speakers have greater latitude to comment on the behavior of people who qualify as “public,” even if the comments prove to be inaccurate.10 The courts have rationalized imposing a heightened burden for “public” plaintiffs to prove defamation because of their superior ability to garner publicity, enabling them to employ selfhelp, counter-speech to repair reputational damage.11 In a line of cases beginning with Curtis Publishing Co. v. Butts in 1967, the Court recognized that speakers need latitude to comment on influential personalities (“public figures”) beyond just government officials.12 For instance, the plaintiff in Butts was a college athletic director and acclaimed football coach who was accused of misconduct— not a government “official” in the traditional sense, but certainly someone whose professional conduct was a matter of legitimate public concern.13 So-called “general-purpose public figures” are people who have attained such “pervasive” fame and influence that the public has a heightened interest in information and commentary about them.14 In Gertz v. Robert Welch, Inc., the Court formalized its recognition of yet another category of “public” plaintiff: the “limited purpose public figure.”15 Limited-purpose public figures are not pervasively famous, but attain situational recognition when they “thrust themselves to a forefront of particular public controversies in order to influence the resolution of the 10 N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). See Cory Batza, Trending Now: The Role of Defamation Law in Remedying Harm from Social Media Backlash, 44 PEPP. L. REV. 429, 448 (2017) (explaining that, because public plaintiffs “inherently have better access to channels of effective communication than private individuals, they can rebut false statements made about them more easily and therefore are less vulnerable to false communications”). 12 388 U.S. 130, 154–55 (1967). 13 Id. at 135–36. 14 See Blue Ridge Bank v. Veribanc, Inc., 866 F.2d 681, 687 (4th Cir. 1989) (“A general purpose public figure is one who occupies a position of such persuasive power and influence and pervasive fame or notoriety in the community that he assumes special prominence in the resolution of public questions and in the affairs of society.”) (internal quotations omitted). 15 418 U.S. 323, 345 (1974). Gertz built on—but declined fully to follow—the Court’s plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 43–44 (1971), in which the justices augmented Sullivan by holding that the heightened standard of proof for libel claims should apply to all statements implicating issues of public concern, regardless of the identity of the speaker. See Jacquelyn S. Shaia, The Controversy Requirement in Defamation Cases and its Misapplication, 28 AM. J. TRIAL ADVOC. 387, 409 (2004) (describing how Rosenbloom introduced concept of “controversy” into Supreme Court’s First Amendment libel jurisprudence, which Gertz then confined only to public-official or public-figure plaintiffs). 11 https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 6 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 721 issues involved[.]”16 Some courts have even found that a person can be dragged involuntarily into “public” status for purposes of libel law without having sought attention, such as by being implicated in a well-publicized crime.17 Once a libel plaintiff is regarded as a “public” person, the First Amendment dictates that the plaintiff carries the burden of demonstrating a heightened degree of culpability on the part of the defendant-speaker.18 While a private person need prove only that the defamatory statement was made with some degree of fault (which might merely be negligence), a public person must show that the defendant spoke with reckless disregard for falsity.19 This “actual-malice” standard imposes a heavy burden, and it often enables publishers to obtain summary dismissal.20 When a person is a limited public figure, rather than a general public figure, the actual malice standard applies only when the dispute involves speech relevant to the person’s involvement in matters of public controversy, not every aspect of the person’s life.21 The heightened actual malice burden protects the ability of journalists, commentators, and activists to criticize 16 Id. See Orr v. Argus-Press Co., 586 F.2d 1108, 1116 (6th Cir. 1978) (explaining that “a criminal defendant would be classified as a ‘public figure’ where . . . his conduct in the community is a legitimate matter of public interest, the press has publicized his conduct in part as a result of his own efforts to obtain publicity, and his conduct has made him the target of a criminal proceeding about which the public has a need for information and interpretation”); Talley v. WHIO TV-7, 722 N.E.2d 103, 107 (Ohio Ct. App. 1998) (holding that, when libel plaintiff pleaded guilty to attempted murder, “he assumed the risk of exposing himself to the attention of the press that arises from such a heinous act” and became a limited public figure); see also Silvester v. Am. Broad. Co’s, Inc., 839 F. 2d 1491, 1494–96 (11th Cir. 1988) (finding that president of jai-alai enterprise was public figure for purposes of television report about allegations of corruption within jai-alai betting). This article does not attempt to deal with the unique equitable concerns about treating a person who attains involuntary (“viral”) online fame as a public figure. For an extensive treatment of that issue, see generally Silver & Rumsey, infra note 19. 18 See Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986) (“When the speech is of public concern and the plaintiff is a public official or public figure, the Constitution clearly requires the plaintiff to surmount a much higher barrier before recovering damages from a media defendant than is raised by the common law.”). 19 See Derigan Silver & Loryn Rumsey, Going Viral: Limited-Purpose Public Figures, Involuntary Public Figures, And Viral Media Content, 27 COMM. L. & POL’Y 49, 53 (2022) (explaining that actual malice is defined as speaking with “knowledge of the statement’s falsity or with reckless disregard for the truth”). 20 See Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 655 A.2d 417, 424 (N.J. 1995) (explaining that public-figure plaintiffs “have a very heavy burden in establishing that the defendants published an article with actual malice”). 21 Gertz v. Robert Welch, Inc., 418 U.S. 323, 344–45 (1974). 17 Published by University of Missouri School of Law Scholarship Repository, 2023 7 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 722 MISSOURI LAW REVIEW [Vol. 88 influential people without the chilling prospect of paying damages in the event of a mere slip-up.22 The question of who qualifies as a public “official” is relatively straightforward: this category includes a person who occupies a position of trust or authority, so that the person’s behavior is subject to a heightened degree of public scrutiny.23 Courts look to several factors in determining whether a libel plaintiff is sufficiently influential to qualify as a public official, including the number of people the plaintiff supervised, the amount of public money the plaintiff controlled, and whether the plaintiff had a role in making policy that affects people’s lives.24 The question of who qualifies as a public “figure” has always been more complex, and it is becoming more complicated all the time.25 Whether a plaintiff is a public figure who is required to prove actual malice to prevail on a defamation claim is a question of law for the judge’s determination.26 General-purpose public figure status is typically limited to people or organizations that have attained widespread popular 22 See David McCraw, Press Freedom and Private People: The Life and Times (and Future) of Chapadeau v. Utica Observer-Dispatch, 74 ALB. L. REV. 841, 845–46 (2011) (“The driving public policy concern behind Sullivan was that the law of libel should provide “breathing space” to the press. Where publishers fear that any error or unintended implication will lead to libel claims and litigation, the inevitable result will be a press that self-censors, avoids writing about the powerful and litigious, and trims back aggressive reporting aimed at investigating complex subjects.”). 23 See Rosenblatt v. Baer, 383 U.S. 75, 85 (1966) (stating that “the ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs”). 24 See Horne v. WTVR, LLC, 893 F.3d 201, 207 (4th Cir. 2018) (stating that “a plaintiff with either actual or apparent substantial responsibility can be deemed a public official for purposes of a defamation claim” and discussing factors relevant to public official determination); Rotkiewicz v. Sadowsky, 730 N.E.2d 282, 288 (Mass. 2000) (enumerating among relevant factors “the government employee’s ability to set policy guidelines that are of importance to public debate . . . the impact of the government position on everyday life; the potential for social harm from abuse of the government position; as well as the employee’s access to the press”); Clawson v. Longview Publ’g Co., 589 P.2d 1223, 1227 (Wash. 1979) (en banc) (applying Supreme Court’s Rosenblatt and explaining that “even relatively low level public employees must, nonetheless, expect a degree of public interest in the performance of their duties. This is especially true where . . . the employees exercise unsupervised discretion in the expenditure of public funds.”). 25 See William P. Robinson III et al., The Tie Goes to the Runner: The Need for Clearer and More Precise Criteria Regarding the Public Figure in Defamation Law, 42 U. HAW. L. REV. 72, 87–88 (2019) [hereinafter Robinson] (describing Gertz standard as “somewhat amorphous” and “inadequate for making consistent journalistic decisions”). 26 Celle v. Filipino Rep. Enters. Inc., 209 F.3d 163, 176 (2d Cir. 2000). https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 8 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 723 recognition, such as entertainment or sports celebrities, or prominent corporations or interest groups.27 The analysis to determine status as a limited, rather than general, public figure is somewhat trickier, and courts have applied somewhat differing approaches.28 Perhaps one of the most influential and widely followed analyses is depicted by Waldbaum v. Fairchild Publications, Inc., in which the D.C. Circuit decided that Eric Waldbaum, the former chief executive of a large food cooperative business, qualified as a limited-purpose public figure in the context of news coverage of his firing.29 The court looked to the fact that Waldbaum’s co-op achieved coverage within trade publications for its innovative business model, and that Waldbaum was a “mover and shaper” of policies being debated within the supermarket industry.30 The court understood the Gertz touchstone of a “public controversy” to mean a situation where “the issue was being debated publicly and . . . had foreseeable and substantial ramifications for nonparticipants(.)”31 Significantly, one indicator of public-figure status that the D.C. Circuit staked out for judges to consider is “whether others in fact alter or reevaluate their conduct or ideas in light of the plaintiff's actions.”32 This description could function as a working definition of being a successful “influencer.” Although Waldbaum is the most widely used approach,33 other circuits apply their own variations based on the Gertz guideposts. The Second Circuit modifies Waldbaum by also inquiring whether the plaintiff 27 See Michel v. NYP Holdings, Inc., 816 F.3d 686, 702 (11th Cir. 2016) (concluding that two-time Grammy-winning recording artist known for founding popular hip-hop band and for philanthropic activity was public figure); Chuy v. Phila. Eagles Football Club, 595 F.2d 1265, 1280 (3d Cir. 1979) (finding that starting player for NFL’s Philadelphia Eagles, who was involved in highly publicized trade, qualified as public figure). See also Church of Scientology of Calif. v. Siegelman, 475 F. Supp. 950, 954 (S.D.N.Y. 1979) (holding that Scientology churches were general purpose public figures for libel purposes because of participation in worldwide movement with 5 million adherents that seeks and attracts considerable donor support). 28 See Mark D. Walton, The Public Figure Doctrine: A Reexamination of Gertz v. Robert Welch, Inc. in Light of Lower Federal Court Public Figure Formulations, 16 N. ILL. U. L. REV. 141, 159 (1995) (“The U.S. Supreme Court's failure to articulate a precise standard for determining a defamation plaintiff's status that can be applied to varying fact situations has led to inconsistent and conflicting lower court determinations with regard to this issue. Lower courts appear to have taken advantage of this lack of clarity in the U.S. Supreme Court cases by developing their own tests for determining the status of defamation plaintiffs.”). 29 627 F.2d 1287, 1298 (D.C. Cir. 1980). 30 Id. at 1299–1300. 31 Id. at 1297. 32 Id. at 1295. 33 See Dalton, supra note 8, at 56. Published by University of Missouri School of Law Scholarship Repository, 2023 9 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 724 MISSOURI LAW REVIEW [Vol. 88 has “regular and continuing access to the media.”34 The Third Circuit eschews that approach and instead focuses on the nature of the particular controversy and the prominence of the plaintiff’s involvement in it.35 The common denominator of all approaches is their emphasis on the voluntary nature of the plaintiff’s involvement in a public issue.36 Of particular note to the status of “internet fame” is the possibility of becoming a public figure in only a particular locality or market.37 Thus, the coach of a high school football team in rural Texas might be a public figure when his activities are covered by the local newspaper, but not if his behavior outside the coaching context lands in a New York City tabloid. For example, a Wisconsin court treated a former state legislator as a general-purpose public figure within the district he formerly served in the legislature, for purposes of his libel suit against a local radio station.38 Perhaps the trickiest judgment calls involve libel plaintiffs who attain recognition within certain subcultures, but not the “pervasive” level of notoriety contemplated by the Supreme Court in Gertz.39 Typically, courts have hesitated to assign public-figure status to “niche” celebrities who would be unknown to the general public.40 For example, the Oregon Supreme Court declined to treat a successful racehorse trainer as any type of public figure, even though he was well-known within the niche of people who followed racing because he had neither attained broad public 34 See id. at 61 (quoting Lerman v. Flint Distrib. Co., 745 F.2d 123, 136–37 (2d Cir. 1984). 35 See id. at 57–59 (quoting Marcone v. Penthouse Int’l Mag., 754 F.2d 1072, 1082–83 (3d Cir. 1985). 36 Id. at 62. 37 Matthew Lafferman, Do Facebook and Twitter Make You a Public Figure: How to Apply the Gertz Public Figure Doctrine to Social Media, 29 SANTA CLARA COMP. & HIGH TECH L.J. 199, 217–18 (2012) (“Courts have found individuals to obtain notoriety when they gained fame or renown in narrow contextual situations, such as within the surfing community, inside a particular metropolitan ethnic community, or within a city’s sports community.”). 38 See Lewis v. Coursolle Broad., 377 N.W.2d 166, 172 (Wis. 1985) (quoting Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d 1287, 1296 n.22 (D.C. Cir. 1980) (“[N]ationwide fame is not required. Rather, the question is whether the individual had achieved the necessary degree of notoriety where he was defamed—i.e., where the defamation was published.”). 39 Gertz v. Robert Welch, Inc., 418 U.S. 323, 352. 40 See, e.g., Riddle v. Golden Isle Broad., 621 S.E.2d 822, 826 (Ga. App. 2005) (deciding that fledgling rap artist, despite developing some localized community following, was unknown to broader community – including radio deejays – and thus had not “achieved the degree of celebrity and influence typical of a general purpose public figure”). https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 10 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 725 recognition nor taken a prominent role in a public controversy.41 More recently, a New York state appellate court declined to recognize an acclaimed music producer known within the industry as “Dr. Luke” as any type of public figure, because—despite being associated with multiple chart-topping hits—the producer operated behind the scenes and was “not a household name.”42 This body of law points to something of a “donut hole” in the law of public figures. People can be quite well-known and influential yet evade characterization as either general public figures (because of a lack of pervasive nationwide fame) or as limited public figures (because their prominence arises from something other than involvement in a “controversy”). This points to the type of scenario that will continue to confront courts as “fame” becomes increasingly fragmented in American culture: a plaintiff with a non-pervasive level of recognition, arising not from a “controversy” but from a desire to attain (and potentially, monetize) online fame. What is the law to do with this new brand of online celebrity? III. ONLINE CULTURE AND THE RISE OF THE “MICRO-CELEBRITY” It may seem like a quaint cultural artifact, but as recently as 1980, the overwhelming majority of the American public was watching one of three television networks: ABC, CBS, or NBC.43 Of the 20 most-watched episodes of television programming in terms of raw viewers, just two of them—the series finales of sitcoms “Cheers” and “Seinfeld”—aired after 1987.44 In such an environment, it was relatively easy to identify the public figures pervasively known throughout society: just turn on ABC, CBS, or NBC. But the entertainment choices available to Americans have proliferated wildly since then. The advent of YouTube, Facebook, and other self-publishing platforms has enabled otherwise-unknown individuals to quickly garner a mass audience. A person can suddenly activate a smartphone camera and—without a movie contract or a spot on a professional sports roster—become a household name. Universally 41 See Wheeler v. Green, 593 P.2d 777, 787 (Or. 1979) (“[O]ne does not become a public figure because of general public interest in one’s lifestyle and personal activities or because one’s job happens to be one in which widespread publicity is given to outstanding performers.”). 42 Gottwald v. Sebert, 148 N.Y.S.3d 37, 43 (N.Y. App. Div. 2021). 43 See Douglas Blanks Hindman & Kenneth Wigand, The Big Three’s PrimeTime Decline: A Technological and Social Context, 52 J. BROAD. & ELEC. MEDIA 119, 126 (2008) (reporting rating statistics that show, as of 1980, 90 percent of prime-time television viewers were watching one of the “big three” networks, a figure that declined to just 34 percent by 2004). 44 John Lynch, The 20 Most-Watched TV Episodes of All Time, INSIDER (Oct. 1, 2017, 9:31 AM), https://www.businessinsider.com/most-watched-episodes-20169#2-cheers-one-for-the-road-series-finale-19 [https://perma.cc/G9E3-FDHL]. Published by University of Missouri School of Law Scholarship Repository, 2023 11 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 726 MISSOURI LAW REVIEW [Vol. 88 known entertainment personalities, including Justin Bieber and Ed Sheeran, launched their careers with self-published YouTube videos that translated into mainstream commercial stardom.45 Today, U.S. adults spend an estimated average of 2.5 hours a day on social media, more than just about any other activity except working and sleeping.46 While Gertz equated public figure status with attaining “pervasive” power or influence, it is worth asking whether that standard makes sense now that there are many “publics” with very different ideas about what it means to be influential within particular communities. A. Social Media: “The Modern Public Square” As has been widely observed, venerable libel-law principles are an imperfect fit with the informal and rapid manner in which speech can be published online today.47 How libel law accommodates itself to social media is an increasingly pressing concern as more and more Americans rely on Instagram, TikTok, and other online platforms for sources of information about current events. Even the famously technology-averse U.S. Supreme Court has characterized the internet as “the modern public square,” acknowledging social media’s central role in discourse about public affairs.48 Studies by the nonpartisan Pew Research Center document the rising importance of social media as a primary source of information; surpassing newspapers, radio, and magazines. In 2018, Pew reported: “One-in-five U.S. adults say they often get news via social media, slightly higher than the share who often do so from print newspapers (16%),” representing the first time newspapers fell behind social media as a frequent news source.49 While television remained the most popular source for news consumption, its advantage is narrowing: 49% of adults surveyed reported getting news 45 Isis Briones, 12 Major Artists Who Got Their Start on YouTube, TEEN VOGUE (Mar. 29, 2016), https://www.teenvogue.com/story/best-artists-discovered-onyoutube [https://perma.cc/4RVY-MJZU]. 46 Henry Savage, How to Take a Break From Social Media, PHILA. INQUIRER (Jan. 10, 2023, 4:58 AM), https://www.inquirer.com/philly-tips/how-to-take-socialmedia-break-reduce-screen-time.html [https://perma.cc/4RPM-HN3D]. 47 See Ellyn M. Angelotti, Twibel Law: What Defamation and its Remedies Look Likes in the Age of Twitter, 13 J. HIGH TECH. L. 430, 437 (2013) (“Existing defamation doctrine appears cumbersome and ill-suited to keep up with the likely flood of disputes over allegedly defamatory speech on Twitter.”). 48 Packingham v. North Carolina, 582 U.S. 98, 107 (2017). 49 Elisa Shearer, Social Media Outpaces Print Newspapers in the U.S. as a News Source, PEW RSCH. CTR. (Dec. 10, 2018), https://www.pewresearch.org/facttank/2018/12/10/social-media-outpaces-print-newspapers-in-the-u-s-as-a-newssource/ [https://perma.cc/Q92F-NDUC]. https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 12 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 727 from television at least some of the time, while 43% relied on social media or news websites.50 With the advent of online publishing, news has become accessible on-demand, not merely when the evening newscast comes on the air or the daily newspaper hits the driveway.51 This phenomenon has profound consequences for the way people consume and think about information delivered through the online fire hose. The average video watch time online is ten seconds or less, and consumers typically spend fifteen seconds or less reading an article,52 a significant change from how adults previously engaged with news. One recognized byproduct of what is known as the “attention economy” is that hyperbolic statements, particularly ones that tap into the audience’s sense of outrage, generate considerable engagement and encourage more outsized claims.53 This feedback loop of outrage has obvious consequences for those concerned with online defamation: posts using inflated rhetoric to express vitriolic criticism will tend to be more widely shared. B. Power, Influence, and Regulatory Pushback With the rise of various social media platforms, a new, powerful marketing tool has disrupted the industry of traditional marketing: influencer culture.54 Social media platforms such as Instagram, Facebook, Twitter (now known as X), Snapchat, and TikTok have become a “central component of consumer marketing in recent years.”55 These platforms 50 Id; See also Amy Mitchell, Americans Still Prefer Watching to Reading the News – and Mostly Still Through Television, PEW RSCH. CTR. (Dec. 3, 2018), https://www.pewresearch.org/journalism/2018/12/03/americans-still-preferwatching-to-reading-the-news-and-mostly-still-through-television/ [https://perma.cc/Y2YR-MB49]. 51 Nicole Martin, How Social Media Has Changed How We Consume News, FORBES (Nov. 30, 2018, 4:26 PM), https://www.forbes.com/sites/nicolemartin1/2018/11/30/how-social-media-haschanged-how-we-consume-news/?sh=2ebe91a53c3c [https://perma.cc/N35MPFQP]. 52 Id. 53 William J. Brady et al., How Social Learning Amplifies Moral Outrage Expression in Online Social Networks, 7 SCI. ADVANCES 1, 1 (2021) (observing that “because moral and emotional expressions like outrage receive especially high levels of social feedback . . . moral outrage expressions may be especially likely to increase over time via social reinforcement learning”). 54 See Delaney Dunn, Famously Fake: Using the Law to Reverse the Demise of Social Media Credibility, 75 FED. COMM. L.J. 53, 59 (2022) (describing “significant shift in the marketing industry towards influencers”). 55 Danielle Izzo, The Influencer Next Door is Helping Major Corporations Evade International Laws: Why Micro Influencers Pose a Unique Regulatory Problem for Consumer Protection Laws, 20 J. INT’L BUS. & L. 50, 50 (2020). Published by University of Missouri School of Law Scholarship Repository, 2023 13 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 728 MISSOURI LAW REVIEW [Vol. 88 allow corporations, using influencer marketers, to directly engage with customers in more personalized and meaningful ways.56 An “influencer” is broadly understood to be someone “with the power to affect the purchasing decisions of others because of his or her authority, knowledge, position, or relationship with his or her audience . . . (and) a following in a distinct niche, with whom he or she actively engages.”57 While many social media users benefit from the occasional free product in exchange for a promotional Instagram post, an increasing number of users are earning a healthy income, as “influencer” becomes a full-time job.58 With a bustling influencer economy,59 federal regulators are beginning to scrutinize whether consumers are misled by advertisements disguised as authentic, fun-and-games personal posts.60 Commercial speech –that which merely invites a transaction—is understood to occupy a lower rung of dignity in the realm of the First Amendment than political speech, so that false or misleading commercial speech can be penalized constitutionally.61 The Federal Trade Commission (“FTC”), created by Congress to enforce the consumer-protection measures of the Federal Trade Commission Act (“FTCA”), has jurisdiction over “unfair or deceptive acts or practices in commerce.”62 The rising prominence of social media led the FTC to amend its guidelines on “deceptive practices” 56 See id. at 56 (describing three-prong test used to classify whether the FTC can find a trade practice deceptive pursuant to the FTCA and its amendments). 57 Werner Geyser, What is an Influencer? – Social Media Influencers Defined, INFLUENCER MKTG. HUB, https://influencermarketinghub.com/what-is-an-influencer/ [https://perma.cc/9PGP-N863] (last visited July 8, 2023). 58 Jyoti Mann, This 26-Year-Old Influencer Quit Her Corporate Job at a Big Four Accounting Firm to Become a Full-Time Content Creator, BUS. INSIDER (June 19, 2022, 5:00 AM), https://www.businessinsider.com/influencer-left-big-fourcorporate-job-full-time-2022-6 [https://perma.cc/4S8Y-ZR2N]; Natalie Brophy, People are Ditching Traditional Jobs for Social Media Careers. Here’s how Five Wisconsinites did it Themselves, POST-CRESCENT (Jan. 3, 2022, 5:54 PM), https://www.postcrescent.com/story/money/careers/2022/01/03/wisconsin-socialmedia-creators-earn-living-content-creators/6120249001/ [https://perma.cc/PGN3ABH7]. 59 See Meaghan O’Connor, Defamation in the Age of Social Media: Why North Carolina’s “Micro-Influencers” Should Be Classified as Limited Purpose Public Figures, 42 CAMPBELL L. REV. 335, 346 (2020) (citing estimates that influencer marketing is a $1 billion industry) [hereinafter M. O’Connor]. 60 See Izzo, supra note 55, at 57 (citing FTC guidance addressing deceptive online marketing practices). 61 See Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 563 (1980) (“[T]here can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity.”). 62 Ava Farshidi, Evaluating the FTC Endorsement Guidelines Through the Career of a Fashion Blogger, 9 HARV. J. OF SPORTS & ENT. LAW 185, 189 n.18 (2018). https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 14 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 729 in 2009 to account for the changes in media and technology.63 These guidelines aim to “enhance informed consumer choice,”64 in situations where the average consumer may not be fully aware that a social media post is actually a paid advertisement.65 When a consumer views an ad in the pages of print media or watches a television commercial, the consumer is intrinsically aware that the advertisement is simply that: a paid endorsement by a company or brand. What makes the use of influencer advertising more prone to disguised marketing is that sponsored social media content is often fully integrated with the influencer’s personal curated content that is not sponsored.66 Thus, it can be difficult for the consumer to distinguish between a paid promotion and a mere expression of personal enthusiasm for a product. The promise of compensation provides an incentive for the poster to make favorable statements about the product.67 This incentive only grows when a social media influencer is trying to cultivate relationships with vendors and build a full-time career, since companies will naturally gravitate to people who give favorable reviews.68 The FTC has ramped up enforcement of mandatory disclosure since 2014, the first time on record that it brought an action involving the adequacy of sponsorship disclosures on social media.69 The FTC has cautioned that, where there is a “material connection” between the endorser-influencer and the corporate brand, this connection “should be clearly and conspicuously disclosed, unless it is already clear from the content of the endorsement.”70 The influencer must unambiguously indicate that (1) he or she was compensated in exchange for a positive endorsement, and/or (2) the influencer expected to receive an after-thefact benefit for a positive review.71 63 Monique Groen, Swipe Up to Subscribe: The Law and Social Media Influencers, 21 TEX. REV. ENT. & SPORTS L. 113, 119 (2020). 64 Id. 65 Id. at 120. 66 Id. at 119–20. 67 See id. (stating that an “endorsement” is “any advertising message . . . that consumers are likely to believe reflects the opinions, beliefs or experiences” of the person doing the endorsing). 68 See id. (explaining how not all influencers are considered endorsers, but an influencer is an endorser where he or she posts sponsored content). 69 Adam Fleisher & Julie O’Neil, The FTC’s Quest for Better Influencer Disclosures, JD SUPRA (Mar. 7, 2018), https://www.jdsupra.com/legalnews/the-ftc-squest-for-better-influencer-14637/ [https://perma.cc/84ZT-VNCF]. 70 See id. (explaining that a material connection means “a connection that might affect the weight or credibility that consumers give the endorsement”). 71 Adrienne Sconyers, Corporations, Social Media, & Advertising: Deceptive, Profitable, or Just Smart Marketing, 43 J. CORP. L. 417, 419 (2018). Published by University of Missouri School of Law Scholarship Repository, 2023 15 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 730 MISSOURI LAW REVIEW [Vol. 88 Violation of the FTCA carries the potential of significant financial penalties.72 In one recent instance, the FTC accepted $1 million to resolve a $15.2 million judgment entered against a tea company that paid influencers to boast about the purported health benefits of its products on social media, without making sure that the posts carried clear disclaimers.73 The FTC has signaled that it intends to more vigorously pursue other such cases against online promoters—and the companies paying them–for misleading marketing practices.74 This enhanced level of federal scrutiny indicates how central influencer marketing has become in the online marketplace, and how much confidence consumers put in the word of strangers with whom they become familiar through social media. C. Macro-Influencers vs. Micro-Influencers Anyone with a significant social media following can serve as an influencer, but not all influencers are equal. “Macro-influencer” is a term that generally refers to “celebrities, famous athletes, models,” or individuals with a strong following outside the Internet who have brought their celebrity status to various social media platforms to promote products or ideas.75 These highly recognizable individuals receive millions of followers across various platforms and consequently have high media visibility.76 A micro-influencer is generally understood to be someone with a following of more than 10,000 but fewer than 50,000.77 72 See Advertising Without Proper Proof Can Prove Costly Under New Notice TRADE COMM., (Apr. 13, 2023), of Penalty Offenses, FED. https://www.ftc.gov/business-guidance/blog/2023/04/advertising-without-properproof-can-prove-costly-under-new-notice-penalty-offenses [https://perma.cc/B9DEEWBV] (describing wide range of unfair or deceptive practices, including those involving improperly disclosed endorsements, that can result in civil penalties of up to $50,120 per violation). 73 See FTC v. Teami, LLC et al., No. 8:20-cv-518-T-33TGEW (M.D. Fla. Mar. 17, 2020) (memorializing terms of a $15.2 million monetary judgment against maker of wellness teas that was accused of deceptive social media marketing practices). 74 Dami Lee, The FTC is Cracking Down on Influencer Marketing on YouTube, Instagram, and TikTok, THE VERGE (Feb. 12, 2020, 4:15 PM), https://www.theverge.com/2020/2/12/21135183/ftc-influencer-ad-sponsored-tiktokyoutube-instagram-review [https://perma.cc/9FA4-DNQQ]. 75 Izzo, supra note 55, at 53. 76 See id. (explaining the category of “mega-influencers,” such as the Kardashians). 77 Werner Geyser, Influencer Rates: How Much do Influencers Really Cost in 2023?, INFLUENCER MKTG. HUB (Dec. 19, 2022), https://influencermarketinghub.com/influencer-rates/ [https://perma.cc/LN5V-JKLJ] [hereinafter Geyser, Influencer Rates]; Danielle Wiley, What You Need To Know About Working With Nano Influencers, FORBES (Mar. 6, 2021, 7:40 AM), https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 16 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 731 Micro-influencers tend to reach a niche audience—either geographically, or within a certain community of interests –allowing those who purchase their endorsement services to reach a more narrowly targeted audience.78 The power of the micro-influencer is that, unlike a Kardashian-level celebrity, a person with modest online fame may appear more authentic and relatable, so that an exuberant post about a vacation resort or shampoo may appear to reflect genuine, not purchased, enthusiasm.79 Consumers numbed by a lifetime’s bombardment of advertising pitches crave information from trusted sources, which is what makes the illusion of a personal connection with a micro-influencer both powerful and, potentially, misleading.80 Predictably, people with small online followings tend to be thinly compensated for endorsements, with some merely “paid” in the form of free trips or products.81 A micro-influencer might make as little as $250 for a post on Facebook or $20 for a tweet on Twitter.82 With such minimal compensation, it is fair to ask whether people with anything less than a Kardashian level of online fame should be characterized as “public figures” for purposes of asserting defamation claims. IV. “PUBLIC ENOUGH?”: DOES INSTAGRAM FAME TRANSLATE IRL? For purposes of the heightened burden of proof under defamation law, the question becomes: How famous must a person become to qualify as a “public” persona? What does it mean to be “public” now that there are many “publics,” defined not by geography but by commonality of media consumption (for example, video gamers who communicate over https://www.forbes.com/sites/forbesagencycouncil/2021/03/08/what-you-need-toknow-about-working-with-nano-influencers/?sh=ed2496685103 [https://perma.cc/G7Y7-S5K2] (describing subcategory of “nano” influencers whose following may be as little as 1,000 people, but who are opinionmakers within their small circle). 78 Rachel Hosie, Why Brands are Turning Away from Big Instagram Influencers to Work with People who have Small Followings Instead, BUS. INSIDER (Apr. 9, 2019, 9:54 AM), https://www.businessinsider.com/brands-turning-to-micro-influencersinstead-of-instagram-stars-20194#:~:text=There%20are%20many%20reasons%20for,lot%20more%20genuine%20a nd%20authentic [https://perma.cc/JYE3-7KXM]. 79 Id. 80 Id. 81 See Izzo, supra note 55, at 65 (detailing the experience of Christina Zayas, a micro-influencer on Instagram who uses the platform to promote brands such as Juul e-cigarettes, who was chosen for her “young and edgy” appearance). 82 Geyser, Influencer Rates, supra note 77. Published by University of Missouri School of Law Scholarship Repository, 2023 17 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 732 MISSOURI LAW REVIEW [Vol. 88 the Twitch platform)?83 What does it mean to have a “community” level of fame, when “community” is untethered to geography?84 The Supreme Court has provided two tools for assessing whether someone qualifies as a public figure when bringing a libel suit. First, the general-purpose public figure, who is pervasively famous.85 Second, the limited-purpose public figure, who becomes famous by voluntarily seeking the limelight on a matter of public concern.86 These tools seem inadequate to account for the way that fame works in modern American culture. People can become “internet famous” without attaining much mainstream recognition at all, and they may seek to affect a “controversy” no more consequential than consumers’ choice of skin-care products. Yet, these figures can attain great reach using non-mainstream media channels. By affirmatively seeking attention on a platform designed for public giveand-take—whether motivated by profit or interest in a cause—such “internet famous” personalities arguably invite comments and criticism about their online activities. Even before the explosion of influencer culture, the niche celebrity proved to be a challenging plaintiff for courts to categorize. For example, a federal district court in New York determined that a musician prominent within the jazz community, whose accolades included a MacArthur Foundation “genius” grant, did not neatly fit either within the generalpurpose public figure mold (a person with pervasive fame) or the limitedpurpose figure mold (a person who sought to influence the outcome of a public controversy).87 At times, courts have eschewed a mechanistic application of the Supreme Court’s public figure standards, fashioning workarounds to reach just results. For example, in Harris v. Quadracci, a federal court in Wisconsin decided that a small-time model and actress was a public figure in the context of a libel suit over a local magazine’s unflattering coverage 83 See Kellen Browning, Twitch’s Relationship With Its Streamers Shows Its Cracks, N.Y. TIMES (Oct. 22, 2022), https://www.nytimes.com/2022/10/22/business/twitch-streamers.html [https://perma.cc/AB8M-RKD4] (describing how Twitch streaming platform has grown from niche video gaming audience to eight million users streaming about various topics to audience totaling 31 million people daily). 84 See Catherine Ross Dunbar, Reputation Evidence in the Age of Instagram, 93 TEMPLE L. REV. 575, 585 (2021) (“As a result of growth in social media access and use, communities are no longer constrained by physical boundaries. People can form opinions about others in an online community without ever meeting face-to-face, speaking on the phone, or even speaking the same language.”); See also Lafferman, supra note 37, at 218 (noting that courts will face challenging judgment calls in determining what notoriety means in context of social media platforms “where users can freely segregate themselves into communities or groups of connections”). 85 Dalton, supra note 8, at 50–51. 86 Id. at 51. 87 Coleman v. Grand, 523 F. Supp. 3d 244, 257 (E.D.N.Y. 2021). https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 18 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 733 of her tax-evasion case.88 The court rejected a literal application of Gertz that would require demonstrating that the plaintiff sought the limelight to influence a public controversy, stating that “voluntary injection is only one way of becoming a limited public figure.”89 Thus, the court avoided the doctrinal lacuna that exists when a person has achieved notoriety in a local market on a matter of public interest but has neither attained pervasive fame nor sought to influence a controversy. To decide whether a social-media influencer qualifies as some type of public figure requires going back to the policy reasons that impelled the courts to carve out a less-protected tier of defamation law for public personalities: the fact that they have self-help opportunities short of litigating, and they are likely to be involved in matters of public concern that speakers should be free to discuss without undue fear of being sued. The question is, how will courts apply these “access to media” and “public controversy” standards in a world where multitudes of speakers are online 24/7 expressing interest in innumerable points of pop-culture minutiae? A. Does Online Fame Equate to “Access to Media?” Courts have justified a heightened libel burden for public figures by referencing their relatively great access to media to protect their reputations.90 But the “access to media” rationale was understood to mean calling a news conference or issuing a press release, in an era when traditional twentieth-century media outlets dominated the discourse. In other words, it was the validation of third-party opinion-makers (e.g., newspaper editors and television news directors) that decided whether a person’s words and activities were interesting enough to broadcast.91 However, opinion-making middlemen no longer hold the exclusive keys to the gate; after all, YouTube’s longtime slogan was “Broadcast yourself.”92 In Gertz, the Supreme Court noted the “significantly greater access to the channels of effective communication” that public officials and public 88 Harris v. Quadracci, 856 F. Supp. 513, 518 (E.D. Wis. 1994). Id. at 517. 90 See Ann E. O’Connor, Access to Media All A-Twitter: Revisiting Gertz and the Access to Media Test in the Age of Social Networking, 63 FED. COMM. L.J. 507, 514 (2011) [hereinafter A. O’Connor] (explaining that the Supreme Court has determined that prominent public figures “tend to have more effective opportunities to redress such defamatory statements by maintaining regular access to the media”). 91 See id. (observing that Gertz Court “seemed to accept that media, generally speaking, meant the print and broadcast media of the day”). 92 Owen Thomas, ‘Broadcast Yourself,’ YouTube Told us. It Might Want to Rephrase That, S.F. CHRON. (June 11, 2019), https://www.sfchronicle.com/business/article/Broadcast-yourself-YouTube-told-usIt-13969852.php [https://perma.cc/XF7L-7C5E]. 89 Published by University of Missouri School of Law Scholarship Repository, 2023 19 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 734 MISSOURI LAW REVIEW [Vol. 88 figures enjoy.93 This sets up two threshold questions applicable to influencer culture: What does it mean to have “greater” access to media, and what does it mean for the access to be “effective?” In one recent test, a federal court in Pennsylvania decided, without much analysis, that “greater” access could include a relatively large Facebook following (30,000 followers on one group page that the two plaintiffs managed, and 1,000 followers on another).94 A helpful metric in thinking about “online public figure” status—a metric that social media companies do not readily publicize—is the percentage of online followers that will actually see and engage with any particular piece of social media content. A TikTok following of 500,000 people, such as Eric Vaughn’s, would be considerably less formidable if only a small fraction of that half-million subscribers tuned in to any particular video.95 It is especially important to generate more research addressing this question—whether a large social media following translates into actually reaching a large audience—because the undergirding “reputation repair” basis in Gertz depends on effectively reaching the same people whose opinions would be affected by the purportedly defamatory statement.96 It obviously would be unfair to distort the public figure doctrine by concluding that anyone with a social media account is a public figure.97 But when a speaker’s online following is sustained and purposefully cultivated, the underlying objectives behind the public figure doctrine seem fully satisfied: the speaker has invited public commentary by choosing to engage in discourse within an inherently interactive forum, 93 Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 (1974) (emphasis added). Amor v. Conover, No. 5:21-CV-05574, 2022 WL 7127657 at *2, *4 (E.D. Pa. Oct. 12, 2022). 95 See Katie Sehl & Shannon Tien, Engagement Rate Calculator + Guide for 2023, HOOTSUITE BLOG (Feb. 22, 2023), https://blog.hootsuite.com/calculateengagement-rate/ [https://perma.cc/4MPL-F3M4] (stating that, in social media marketing industry, “experts agree that a good engagement rate is between 1% to 5%,” indicating that only a small fraction of social media followers actually interact with any particular post). 96 See Reuber v. Food Chem. News, Inc., 925 F.2d 703, 708 (4th Cir. 1991) (finding that scientist had “effective” access to media to rebut unflattering letter shared with chemical-industry newsletter because, as author of at least 3

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