Internet Famous: Are Online Influencers and Micro-Celebrities Public Figures Under Defamation Law? PDF

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...

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 35 published research papers, he could reach professional forum “where [his] reputation was presumably tarnished and where it could be redeemed”). 97 See Silver & Rumsey, supra note 19, at 71 (“[I]n an age where we all have ‘access to media’ in some form, courts should state that alone [is] not a legitimate factor in the limited-purpose public figure equation. . . .[W]hether a social media account is public should not automatically transform the individual into a public figure.”); Lafferman, supra note 37, at 206 (“Courts should avoid a voluntariness definition that encompasses simple operation and use of a social media site. Such an approach would convert millions of users into public figures in one fell swoop.”). 94 https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 20 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 735 and she can repair reputational damage through counter-speech directed to the community within which she is well-known.98 B. Is Online Marketing a “Public Controversy?” The notion of a limited public figure presupposes the existence of a public controversy that the libel plaintiff has sought to influence. In evaluating whether a public controversy exists, the critical decision points are: (1) the extent to which the “controversy” must affect people beyond those directly participating, and (2) whether a situation becomes a “public controversy” merely because it is interesting to a wide audience, even if it has no direct effect on them.99 The Supreme Court’s relatively few decisions have staked out some outer boundaries—merely becoming embroiled in a high-profile divorce case is not enough to transform an otherwise private person into a public figure100—but the cases have not set forth any universal governing principles for where “public controversy” begins and ends.101 Lacking clear guidance, lower courts have reached irreconcilably different understandings of what it means to take part in a public controversy.102 Courts have adopted varying views of what it means to take part in a controversy, with some looking for indicators of a purposeful intention to gain attention, while others find it satisfactory that attention was foreseeable even if unintended.103 The Supreme Court has taken a relatively narrow view of what rises to the level of a public controversy, cautioning that not every situation that 98 See M. O’Connor, supra note 59, at 356–57 (observing that activities of influencers are “inherently public”). 99 See Carl Willner, Defining a Public Controversy in the Constitutional Law of Defamation, 69 VA. L. REV. 931, 944 (1983) (describing factors courts have applied in determining whether issue rises to level of “public controversy” as understood in defamation law). 100 Time, Inc. v. Firestone, 424 U.S. 448, 454–55 (1976). 101 See Anthony Ciolli, Bloggers as Public Figures, 16 B.U. PUB. INT. L.J. 255, 267 (2007) (commenting that “[b]ecause of the inconsistencies between Gertz and subsequent precedent, lower courts have had difficulty creating a uniform definition of ‘public controversy’”). 102 See Ashley Messenger & Kevin Delaney, In The Future, Will We All Be Limited-Purpose Public Figures?, 30 COMM. LAW. 4, 4 (2014) (observing that “courts have struggled to determine what constitutes a public controversy” with some maintaining that a newsworthy matter of public interest is enough, and others insisting that there actually must be a dispute as opposed to something merely interesting to the public); Shaia, supra note 15, at 388 (stating that “[n]o consistency exist in the lower courts in determining what constitutes a public controversy” and criticizing expansive view that many courts have taken since Butts). 103 Lafferman, supra note 37, at 218–19. Published by University of Missouri School of Law Scholarship Repository, 2023 21 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 736 MISSOURI LAW REVIEW [Vol. 88 appeals to public curiosity will qualify.104 Lower courts have at times been more expansive. A situation can be considered a public controversy even if it does not involve traditional issues of social or political concern,105 and even if interest is localized within a particular community.106 Activities that affect large numbers of consumers, such as the soundness of a bank, would seem to qualify as inherently “public” for purposes of defamation law since people need to be able to share ideas and concerns about certain industries.107 Taking this relatively broad view, influencer speech may be commercial and yet also a matter of public controversy, on topics such as fitness, diet, personal finance, sports, or technology. In one especially noteworthy case, the Third Circuit concluded that conducting a highprofile “advertising blitz” was enough to make a food vendor a public figure for purposes of a TV news reporter’s commentary on the vendor’s product quality.108 Yet, not all courts have agreed that the fitness of products sold to the public is categorically a matter of public controversy when speech impugning those products becomes the subject of a libel claim.109 Whether an influencer’s speech will be regarded as addressing matters of public concern depends to a great extent on whether the speech is viewed in isolation (e.g., what Mary posts about her own dietary regimen), or in the context of the generic issues that the speech implicates (e.g., whether obesity is a serious public health concern). Some judges 104 Firestone, 434 U.S. at 454 (stating that divorcing well-known person does not transform spouse into public figure “even though the marital difficulties of extremely wealthy individuals may be of interest to some portion of the reading public”). 105 See, e.g., Bellino v. Judge, No. G057450, 2020 WL 625727 at *8–9 (Cal. App. Oct. 23, 2020) (holding that public debate “about reality television and its personalities” was enough of a public controversy to render plaintiff—who occasionally appeared alongside his wife on episodes of Bravo’s “Real Housewives of Orange County”—a limited public figure). 106 See, e.g., Carr v. Forbes, Inc., 259 F. 3d 273, 279 (4th Cir. 2001) (finding that soundness of bond-financed infrastructure projects in Arizona and South Carolina was public controversy for purposes of defamation claim, because failure of projects could adversely affect local taxpayers). 107 See Robinson, supra note 25, at 124–25 (arguing that activities of certain industries should be regarded as presumptively matters of public controversy, and commenting: “Scrutiny and criticism of commercial institutions and those at their helm should be as unrestrained as criticism of government and those at its helm.”). 108 Steaks Unlimited, Inc. v. Deaner, 623 F. 2d 264, 274 (3d Cir. 1980). 109 See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 591–92 (1st Cir. 1980) (holding that purported defects in plaintiff’s boats was not preexisting matter of public controversy before defendant newspaper’s articles raised questions about their seaworthiness); see also Franklin Prescriptions, Inc. v. N.Y. Times Co., 267 F. Supp. 2d 425, 437 (E.D. Pa. 2003) (distinguishing Third Circuit’s Steaks case and holding that mere act of using website to promote sale of fertility drugs did not convert pharmacy into limited public figure). https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 22 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 737 take the view that the scope of the public controversy should be limited to the specific situation to which the disputed speech refers.110 Other judges take a broader view, interpreting the controversy to encompass the subject matter more generically on a societal level.111 A libel case brought by the wife of a college basketball coach illustrates how this scoping decision can greatly influence the outcome of a case. In Fine v. ESPN, Inc., the wife of Syracuse University’s assistant basketball coach alleged she was libeled by a news report that implicated her in her husband’s sexual abuse of minors.112 Arguing that she was a private figure who had not interjected herself into any controversy, the plaintiff defined the scope of the “controversy” as limited to the specific sexual abuse claims in ESPN’s report, which she argued affected only the few people involved.113 A federal district court in New York took a wider view, defining the relevant controversy as “the integrity of the Syracuse University’s men’s basketball team and efforts to address at-risk youths,” both of which the plaintiff had addressed in speeches and media appearances.114 Hence, the plaintiff qualified as a limited-purpose public figure.115 The Fine case illustrates how the judge’s conception of a public controversy –a localized one-time dispute, or part of a broader issue of public concern –can be decisive in a case’s outcome. One can readily envision how this analysis might play out in the context of social media influencer culture. An Instagram user who simply boasts about her own weight loss is unlikely to be addressing matters of substantial public concern, as opposed to a user who regularly comments about the phenomenon of disordered eating. 110 For instance, in Maguire v. Journal Sentinel, Inc., 605 N.W.2d 881 (Wis. App. 1999), the court took a narrow view of the scope of a public controversy in a libel suit over a newspaper’s coverage of a rancorous divorce between two people involved in advocacy for feminism within Catholicism. The court rejected the newspaper’s attempt to tie the controversy to the larger political and social issues in which the couple was involved, and limited the “controversy” to the specific statements made by the plaintiff/wife that were the subject of the libel claim. Id. at 886–87. 111 For example, in Clyburn v. News World Comms., Inc., 903 F.2d 29 (D.C. Cir. 1990), the D.C. Circuit applied the public-figure analysis in a libel suit brought by the politically connected boyfriend of a woman who died after ingesting drugs at a party. The plaintiff argued that the “controversy” at issue in the story was limited to the death investigation, but the court took a broader view and characterized the controversy more generically as “[p]ossible drug dealing and drug use by public officials and their friends.” Id. at 32. 112 No. 5:12-CV-0836, 2016 WL 6605107 (N.D.N.Y. Mar. 25, 2016). 113 Id. at *9. 114 Id. 115 Id. at *11. Published by University of Missouri School of Law Scholarship Repository, 2023 23 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 738 MISSOURI LAW REVIEW [Vol. 88 C. Call-Out Culture” and the Proliferation of Online Accusations The same empowering quality of social media platforms—that they allow ordinary people to reach large audiences without the gatekeeping of corporate editors and publishers—also comes with the downside risk that people will use those platforms for misfired accusations of serious wrongdoing against the innocent.116 One commentator observed: “As social media has grown to take a larger role in American life, so too has the ‘call out,’ where those accused of wrongdoing are aired online, and the accused are held up to public scrutiny.”117 In 2017, Kyle Quinn, then a professor at the University of Arkansas, was wrongly identified as a participant in the white supremacist rallies in Charlottesville, Virginia.118 Civil rights advocates took to Twitter and posted photos of people taking part in the march, and one advocate was misidentified as Quinn.119 In the following days, social media users bombarded Quinn and his family with hate messages over Twitter, and death threats forced the family to hide out at a friend’s house.120 Quinn’s plight is not isolated, as amateur online sleuths race to judgment—and sometimes, to misjudgment. In 2020, Darnell Hicks, a father of two and youth football coach from Compton, California, was falsely identified on social media as the man who shot two Los Angeles County Sheriff deputies.121 Last year, a self-proclaimed online psychic used TikTok videos to falsely implicate a University of Idaho professor in 116 Harmon Leon, How Internet Mob Justice Can Easily Destroy Innocent Lives, THE OBSERVER (May 31, 2019, 9:00 AM), https://observer.com/2019/05/internetmob-justice-innocent-lives/ [https://perma.cc/FNB8-TBB8]. 117 David DeWitt, Social-Media “Call Out” Gets Called Out, ATHENS NEWS (Oct. 25, 2017), https://www.athensnews.com/news/local/social-media-call-out-getscalled-out/article_27feda0c-b9a0-11e7-8f0c-9b57bff7e898.html [https://perma.cc/5HW2-XBDQ]. 118 Laura Sydell, Kyle Quinn Hid at a Friend’s House After Being Misidentified on Twitter as a Racist, NPR (Aug. 17, 2017, 12:32 PM), https://www.npr.org/sections/alltechconsidered/2017/08/17/543980653/kyle-quinnhid-at-a-friend-s-house-after-being-misidentified-on-twitter-as-a-racist [https://perma.cc/Z8XV-N2NH]. 119 See id. 120 Id. 121 See Snejana Farberov, Compton Father-of-Two, 33, Says He is Receiving Death Threats After Being Falsely Accused on Social Media of Shooting Two LA County Sheriff’s Deputies, DAILY MAIL (Sept. 15, 2020, 10:01 AM), https://www.dailymail.co.uk/news/article-8735021/Compton-father-falsely-accusedsocial-media-ambush-two-LA-County-sheriffs-deputies.html [https://perma.cc/3FYF-R8RP]. https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 24 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 739 the stabbing deaths of four students, leading the professor to file a defamation suit.122 Social media has given rise to this phenomenon of “callout culture,” in which speakers try to expose, and impose consequences on, perceived wrongdoing.123 An especially controversial subcategory is the #MeToo blog or website, where women share horror stories of facing harassment.124 While these online pages have raised public awareness of the prevalence of sexual misconduct, particularly in the workplace,125 they are not typically subject to the rigorous editing and fact-checking that would accompany publishing charges of serious wrongdoing in a mainstream professional publication.126 Such unfiltered immediacy raises the prospect that an innocent person may—intentionally or accidentally—be misidentified as a wrongdoer.127 To cite one example of online callout culture, accusations of unethical or even illegal sexual behavior are propagating among localized Facebook groups that seek to expose unfaithful spouses or boyfriends: “Are We Dating the Same Guy?”128 122 Emily Mae Czachor, Professor Sues TikToker Who Accused Her in University of Idaho Murders, CBS NEWS (Dec. 27, 2022, 2:29 PM), https://www.cbsnews.com/news/university-of-idaho-murders-professor-suestiktoker-rebecca-scofield-ashley-guillard/ [https://perma.cc/XKV3-XB62]. 123 See Jessica Bennett, What if Instead of Calling People Out, We Called Them In?, N.Y. TIMES (Nov. 19, 2020), https://www.nytimes.com/2020/11/19/style/lorettaross-smith-college-cancel-culture.html [https://perma.cc/9CMK-P9XV] (discussing phenomenon of online shaming of people for racist or sexist speech). 124 Emily Sugerman, Me Too: Why are Women Sharing Stories of Sexual Assault and How Did it Start?, THE INDEP. (Oct. 7, 2017, 10:51 PM), https://www.independent.co.uk/news/world/americas/me-too-facebook-hashtagwhy-when-meaning-sexual-harassment-rape-stories-explained-a8005936.html [https://perma.cc/FU6A-SXG3]. 125 Kelly Wallace, After #MeToo, More Women Feeling Empowered, CNN (Dec. 27, 2017, 8:28 AM), https://www.cnn.com/2017/12/27/health/sexual-harassmentwomen-empowerment/index.html [https://perma.cc/Y5EN-KWEY]. 126 See Jessica A. Clarke, The Rules of #MeToo, 2019 U. CHI. LEGAL F. 37, 55 (2019) (describing how news organizations apply fact-checking and ethical standards to investigative stories, and commenting that “[j]ournalists in the #MeToo era recognize that these rules cannot be suspended in reporting on sexual assault”). 127 See Lachlan Cartwright, Ugly Battle Over ‘Shitty Media Men’ List Ends in Six-Figure Payout, DAILY BEAST (Mar. 6, 2023, 8:32 PM), https://www.thedailybeast.com/ugly-battle-over-shtty-media-men-list-ends-in-sixfigure-payout [https://perma.cc/9UXY-SDPR] (describing court battle over shared online spreadsheet where defendant had invited women to post bad experiences with men working in media industry, which plaintiff claimed misidentified him as a rapist and sexual harasser). 128 Jessica A. Botelho, Are We Dating the Same Guy?: Facebook Group Aims to ‘Protect and Empower’ Women, KOMO NEWS (Mar. 21, 2023, 12:09 PM), https://komonews.com/news/offbeat/are-we-dating-the-same-guy-facebook-group- Published by University of Missouri School of Law Scholarship Repository, 2023 25 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 740 MISSOURI LAW REVIEW [Vol. 88 Women post pictures of men they have dated with red flags that indicate untrustworthy behavior, inviting comments from other group members.129 Localized variations of the page exist in markets throughout the country, including New York City, where its group boasts more than 97,000 members,130 and greater Miami, where membership exceeds 30,000.131 Women who are members of this group are encouraged to share negative experiences, as well as ask for advice.132 “Loyalty testing,” the practice of posting pictures of long-term boyfriends or spouses and asking if any women have dated them recently or seen their pictures on dating sites, is not only common but encouraged.133 The potential for such pages to host unverified claims of wrongdoing is self-evident, demonstrating how social media vastly increases the opportunities for defamatory remarks by careless or untrained speakers to find a mass audience.134 A recent Minnesota case illustrates how the aforementioned libel principles may play out in the realm of social media “callouts.” In Johnson v. Freborg, the libel plaintiff was a dance instructor, suing a former student who used Facebook to accuse him of sexual battery.135 Although the Facebook post itself connected the incident to a larger cultural movement of women coming forward with accusations against their dance teachers, a Minnesota appellate court viewed the matter as primarily a personal dispute between the two parties, not a public controversy affecting larger aims-to-protect-and-empower-women-social-media-safe-space-relationship-supportlove-friendship-liars-cheaters-abusers-toxic-dangerous-behavior-new-york-buffaloniagara-falls [https://perma.cc/H4N6-3SXU]. 129 Id. 130 Are We Dating The Same Guy? | New York City NYC, https://www.facebook.com/groups/340985311306448 [https://perma.cc/ZW49RSB2] (last visited Aug. 26, 2023). 131 Are We Dating The Same Guy? | Miami / Fort Lauderdale / South Florida, FACEBOOK, https://www.facebook.com/groups/489627572708738 [https://perma.cc/83WE2NLA] (last visited July 8, 2023). 132 Jamie Kahn, Inside the Secret Facebook Group Where Women Review Men They’ve Dated, GLAMOUR (Oct. 26, 2022), https://www.glamour.com/story/are-wedating-the-same-guy-facebook-group [https://perma.cc/9GCS-S6FL]. 133 Id. 134 Anyone damaged by false accusations within a Facebook call-out group is limited to seeking damages from the author of the post, because Section 230 of the Communications Decency Act, 47 U.S.C. § 230, immunizes Facebook and other platforms from liability for defamatory posts by outside third-party users of their services. See Sheena Allen, Defamation for Hire: Revisiting Sullivan in the Age of Sponsored Corporate Cyber-Smearing, 12 ALA. C.R. & C.L. L. REV. 109, 134–35 (2020) (pointing out that, because of CDA immunity, plaintiffs “cannot recover from the ‘bigger pocket’ that gave the town-crier the soapbox on which to stand”). 135 Johnson v. Freborg, 978 N.W.2d 911, 914–15 (Minn. App. 2022). https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 26 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 741 society.136 The court hesitated to bootstrap a personal disagreement onto the #MeToo movement, although a dissenting judge had no such reluctance, writing that the plaintiff’s post “clearly reflects her intent to participate in the #MeToo conversation.”137 The court’s split underscores how challenging it will be to assess the “public” nature of social media posts as people increasingly use social platforms to target perceived wrongdoers. D. Gertz on the ‘Gram: Applying Old-School Standards to Next-Gen Speech Under current legal standards, it seems unlikely that a court would regard a person who may be viewed as obscure outside of a single social media platform to be a general-purpose public figure, since that status implies being known “to a large percentage of the well-informed citizenry.”138 It is more likely that general-purpose public figure status will be reserved for those who, like members of the Kardashian clan, attain fame in mainstream as well as social media, and become newsmakers for something other than just marketing campaigns.139 However, limitedpurpose public figure status could arguably be a suitable fit for an “internet famous” person who becomes known for social media commentary that engages public interaction. How the Gertz standard plays out in the brave new world of socialmedia celebrity is being tested in cases such as Eric Vaughn’s libel suit against right-wing commentator and provocateur Lauren Witzke.140 Vaughn chronicled his family’s journey through the surrogacy and adoption process on TikTok, where his account amassed nearly 500,000 followers.141 The traditional public figure analysis under venerated libel136 Id. at 922. Id. at 926 (Wheelock, J., dissenting in part). See also Scott v. Lackey, No. 1:02-CV-1586, 2012 WL 1933246, at *4 (M.D. Pa. May 29, 2012) (holding that otherwise-unknown plaintiff did not become public figure merely by using celebrity fan-club website to post comments on matters of public concern, such as Hollywood’s treatment of Native American actors). 138 Waldbaum v. Fairchild Publ’ns, Inc., 627 F. 2d 1287, 1295 n.20 (D.C. Cir. 1980). 139 See MJ Corey, I Won’t Stop Intellectualizing The Kardashians, REFINERY29 (May 6, 2022, 1:17 PM), https://www.refinery29.com/en-us/2022/05/10970105/howkardashians-influence-society [https://perma.cc/GWP4-Y8QJ] (describing how Kardashian family has been featured in multiple television reality shows, and how their weddings, dating habits and fashion choices have become matters of widespread public discussion in mainstream as well as social media). 140 Parra, supra note 1. 141 See id. (reporting that it was through this same social media platform where one of their followers reached out to offer to be a surrogate for the married couple after experiencing difficulty adopting for over two years). 137 Published by University of Missouri School of Law Scholarship Repository, 2023 27 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 742 MISSOURI LAW REVIEW [Vol. 88 law principles produces somewhat equivocal results in Vaughn’s case. On one hand, Vaughn did not have any particular notoriety outside of the TikTok platform—and Witzke made her challenged statements on Twitter, not TikTok, which raises the question of whether a large fan base on TikTok constitutes the regular and continuous access to media contemplated by Gertz. On the other hand, Vaughn has become a public face associated with surrogate parenting and, at least implicitly, with the right of same-sex parents to adopt children, a question that (in some quarters of right-wing culture) continues to be a matter of contention.142 Witzke’s statements do pertain to the reason for which Vaughn is wellknown online: he is a parent navigating the surrogate-parent adoption process. The limited public figure analysis becomes murky and potentially turns on the court’s assessment of what it means to be followed by a halfmillion people on TikTok, a platform known for fleeting, rapid-scrolling, semi-engagement.143 The public-figure analysis becomes even trickier in a case such as that of Eva Lopez, an Instagram “fashion influencer” with more than 862,000 followers, who is suing New York City and its police department for falsely identifying her as a suspected criminal.144 In August 2021, Lopez learned that her photograph was erroneously featured on an online “wanted” poster issued by New York police detective Kevin Dwyer, alleging that the person depicted on the poster robbed a client while working as an escort.145 Through attorney Mark Shirian, Lopez filed suit over the misidentification, alleging libel, intentional infliction of emotional distress, and a host of other claims.146 Again, a Gertz analysis points in somewhat differing directions. Lopez has a degree of fame beyond the average person, which suggests a superior ability to repair damage to her reputation through online counter-speech. However, she certainly did not thrust herself into any controversy involving escort services, nor does the accusation of being an escort/robber grow out of the fashion modeling for which Lopez is known. Thus, the case for Lopez 142 As recently as 2016, at least one state still maintained a law against adoption by same-sex couples. See Mollie Reilly, Same-Sex Couples Can Now Adopt Children In All 50 States, HUFFINGTON POST (Mar. 31, 2016, 8:26 PM), https://www.huffpost.com/entry/mississippi-same-sexadoption_n_56fdb1a3e4b083f5c607567f [https://perma.cc/T67Z-NCK2] (reporting that federal judge enjoined Mississippi from enforcing adoption ban). 143 See JR Thorpe, Why You Shouldn’t Worry About TikTok Destroying Your Attention Span, BUSTLE (Feb. 10, 2021), https://www.bustle.com/wellness/tiktokattention-span-brain-effects-experts [https://perma.cc/XPU6-88N9] (describing how some users watch movies or read books while also thumbing through TikTok’s shortform videos). 144 Verified Complaint, Lopez v. City of N.Y., Index No. 152069/2022. 145 See id. at 18–19, 21. 146 See id. at 39. https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 28 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 743 being a public figure for purposes of the heightened burden of proof would be a challenging one for the defendants, depending on whether the court regards “access to media” or “taking a prominent role in a public controversy” as the more important consideration. As cases such as Vaughn’s and Lopez’s demonstrate, courts will struggle for some time to come to grips with translating case law about offline fame into the realm of fleeting, fragmentary, online recognition. Ultimately, such questions require contemplating what it means to have (or to be) a “follower” in contemporary online culture. Unquestionably, a person who starred in a television show regularly viewed by two million people, or an author who wrote a best-seller purchased by two million readers, should qualify as a public figure. But does a social media following of two million people carry the same weight? An Instagram user might follow as many as 7,500 other Instagram users’ accounts.147 No one watches 7,500 different television series or subscribes to 7,500 newspapers. The weight that the law attaches to a large following in television, books, magazines, or newspapers might logically diminish in contemporary online culture, where the attention an audience member typically pays to any one account is measured in seconds, not hours.148 Courts have already learned to apply some degree of “credibility discounting” to social media speech, in recognition that a remark in The New York Times carries different weight than the same words in a Twitter post, and that reasonable readers take social media’s informal context into account.149 It may make sense to apply the same healthy skepticism to 147 See How Many Accounts You Can Follow on Instagram, INSTAGRAM HELP CTR., https://help.instagram.com/408167069251249 [https://perma.cc/7S4E-WN4K] (last visited July 8, 2023) (explaining platform’s policy of limiting users to following 7,500 other accounts). 148 See Jason Wise, What Is The Average Time Spent On A Website In 2023?, EARTHWEB (last updated Aug. 23, 2023), https://earthweb.com/what-is-the-averagetime-spent-on-a-website/ [https://perma.cc/2WHD-JWBA] (reporting that website visitors typically spend less than one minute visiting any particular page); see also Kevin McSpadden, You Now Have a Shorter Attention Span Than a Goldfish, TIME (May 14, 2015, 5:09 AM), https://time.com/3858309/attention-spans-goldfish/ [https://perma.cc/24QJ-QCFQ] (discussing findings of study of human brainwave activity by Microsoft researchers, who concluded that, between 2000 and 2015, average attention spans dropped from twelve to eight seconds, a decline attributed to distractions from mobile devices). 149 See, e.g., Finkel v. Dauber, 906 N.Y.S.2d 697, 701–02 (N.Y. Sup. Ct. 2010) (recognizing that reasonable reader would recognize outlandish Facebook posts— stating that libel plaintiff had relations with a horse, and contracted HIV from having sex with prostitutes and sharing needles with heroin users—as “puerile attempts by adolescents to outdo each other”); See generally Frank D. LoMonte, The “Social Media Discount” and First Amendment Exceptionalism, 50 U. MEM. L. REV. 387, 434 (2019). Published by University of Missouri School of Law Scholarship Repository, 2023 29 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 744 MISSOURI LAW REVIEW [Vol. 88 online follower numbers, especially knowing that accounts may be inauthentic and that followings may be purchased.150 Nevertheless, a purely numerical analysis that equates follower count with “public” or “private” status overlooks the way social-media fame works today: people may hold great sway within niche communities while remaining unknown to the larger public.151 There is an obvious public interest in protecting speech that raises good-faith questions about whether an influential person is trustworthy. For instance, to use a ripped-fromthe-headlines scenario, there is a public interest in questioning whether the operator of a Facebook group that advocates for banning LGBTQIA+themed books from libraries is truthful.152 If a critic’s statement pertains directly to the trustworthiness of a micro-influencer who exerts influence within a niche community, then—as long as the speech touches on matters of public concern—extending Butts/Gertz protection to the critic would advance the First Amendment’s core concern for protecting the free exchange of ideas.153 E. A Sliding Scale of Internet Fame? Influencers present a special analytical challenge in applying the public figure doctrine because part of what makes influencers (and in particular micro-influencers) effective is that they are not universally recognized celebrities. Rather, an influencer often projects a sense of 150 See Caroline Forsey, Why You Shouldn't Buy Instagram Followers (& What (May 6, 2022), Experts Say to Do Instead), HUBSPOT https://blog.hubspot.com/marketing/buy-instagram-followers [https://perma.cc/B9TR-9WDD] (“There are plenty of cheap services available that allow you to buy 1,000 followers for as little as $10. . . . Many of those followers are either bots or inactive accounts, which means they’ll never engage with your posts.”). 151 See Dreibelbis, supra note 6, at 272 (“Directing courts to look at numbers alone is not helpful: for instance, users with relatively few profile followers may still be considered influential in their respective fields”). 152 See Eesha Pendharkar, A School Librarian Pushes Back on Censorship and Gets Death Threats and Online Harassment, EDUC. WEEK (Sept. 22, 2022), https://www.edweek.org/policy-politics/a-school-librarian-pushes-back-oncensorship-and-gets-death-threats-and-online-harassment/2022/09 [https://perma.cc/A4QJ-C7U4] (reporting that Louisiana librarian is suing operators of two Facebook groups for generating harassing and threatening messages toward her). 153 In Revitalizing Rosenbloom: The Matter of Public Concern Standard in the Age of the Internet, Amy Kristen Sanders and Holly Miller persuasively argue for a return to the “public concern” standard recognized by the Supreme Court in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971), from which Gertz retreated. 12 FIRST AMEND. L. REV. 529, 552 (2014) (“By abandoning the plaintiff status distinction in favor of the matter of public concern standard, the courts would provide more consistent protection to core First Amendment speech regardless of the status of the person who was spoken about.”). https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 30 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 745 ordinariness and approachability—the opposite of what we normally think about when we think of “fame.”154 As courts analyze the public-figure status of “internet famous” plaintiffs, it may be helpful to refer back to the fairness-based policy considerations behind Gertz and its progeny: that libel law should protect the ability to engage in commentary about influential people, while also protecting less-influential people who lack the means to defend themselves.155 First, it is appropriate to consider the extent to which the speaker purposefully sought attention for personal aggrandizement and profit. The marketing pitches of an Instagram influencer are far removed from the core of what the First Amendment is foundationally understood to protect: the right of the citizenry to be heard on matters of social and political concern.156 If the prospect of being deemed “public figures” causes some Instagram marketers to be less eager to use social media, not much speech of significant civic value will be silenced. The speech of the marketers’ critics, too, must be considered. Lowering the bar for an influencer to bring a defamation claim means that consumers who have bad experiences with the influencer’s recommended products may keep their criticism to themselves, which means only monied commercial interests may be heard in the marketplace of ideas.157 Relatedly, it is appropriate to consider the extent to which the online speaker’s fame and following arises out of volitional activity calculated to attract public attention. A person who is unwittingly dragged into the limelight in a one-time “viral” video—particularly if there is no indication that the person was addressing issues of public concern—is more difficult doctrinally to categorize as a public figure, even if that person attains significant notoriety.158 Conversely, if an account-holder engages in a systematic and purposeful activity designed to build an online following, it is fairer for defamation law to presume that the account-holder assumed the risk of being criticized, even perhaps unfairly and inaccurately. 154 See Izzo, supra note 55, at 53 (explaining that micro-influencers “are uniquely situated to develop a close relationship with their followers by making product reviews and posts appear authentic in a way that celebrity posts do not”). 155 See Allen, supra note 134, at 144 (opining that “[a] well-known hired influencer with several thousand followers would have sufficient popularity to be a limited purpose public figure. An online reviewer that frequently posts comments, and makes substantial revenue from doing so, would also meet the requirements.”). 156 See Virginia v. Black, 538 U.S. 343, 365 (2003) (stating that “lawful political speech [is] at the core of what the First Amendment is designed to protect”). 157 See M. O’Connor, supra note 59, at 353 (“It is important that influencers and figures trusted by the public to provide information are held accountable when they do not.”). 158 See Silver & Rumsey, supra note 19, at 74–75 (arguing against application of involuntary public figure doctrine to people featured in viral social media videos). Published by University of Missouri School of Law Scholarship Repository, 2023 31 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 746 MISSOURI LAW REVIEW [Vol. 88 While the term “influencer” is primarily associated with commercial marketing, influencers commonly cultivate audience engagement by posting about larger societal issues of interest to their targeted demographic.159 Obviously, just speaking about contemporary issues should not transform an ordinary social media user into a public figure, since that would disincentivize the speech that the First Amendment most ardently protects.160 But if the social commentary is consciously intermingled with demonstrations of workout attire or skin cream as part of a branding strategy,161 then it is fair to conclude that the influencer is attempting to leverage her superior access to an audience for purposes of affecting debate on an issue of public concern.162 If it seems unjust to hold a person primarily known for dancing on home video in her bedroom to the same legal standard as Beyoncé or Madonna, libel law does offer some relief from an overly harsh application of public-figure status. A limited-purpose public figure need not prove actual malice if the purportedly defamatory statement is of no public concern and has no bearing on the plaintiff’s reason for being famous.163 In other words, while “TikTok famous” hairdresser Eric Vaughn might have difficulty challenging a defamatory statement about his adoption videos, he would revert back to a private figure if suing over a false insult claiming that he has a sexually transmitted disease or spent time in drug rehab. This built-in safeguard means that online dialogue relevant to the issues that influencers address can remain uninhibited, while influencers 159 See Rachel Connolly, Be Warned: For Influencers, Social Justice is No More Than a Branding Device, GUARDIAN (Feb. 9, 2022, 5:00 AM), https://www.theguardian.com/commentisfree/2022/feb/09/influencers-online-socialjustice-branding [https://perma.cc/ZY2D-UL2L] (commenting that influencers “frantically espouse support for causes that have mainstream buy-in” in search of greater popularity). 160 See Messenger & Delaney, supra note 102, at 8 (“[I]t seems clear that thrusting oneself to the forefront of a public controversy requires more than simple, ordinary Internet use.”). 161 See Terry Nguyen, How Social Justice Slideshows Took Over Instagram, VOX (Aug. 12, 2020, 7:00 AM), https://www.vox.com/the-goods/21359098/socialjustice-slideshows-instagram-activism [https://perma.cc/VNQ5-32VC] (explaining how brands are using social media to associate themselves with feel-good causes including climate change and racial justice). 162 See Dalton, supra note 8 (stating that key inquiry in assessing limited public figure status is “active participation by the plaintiff in a public issue in a manner intended to gain public attention”). 163 See Patrick H. Hunt, Tortious Tweets: A Practical Guide to Applying Traditional Defamation Law to Twibel Claims, 73 LA. L. REV. 559, 573 (2013) (stating that limited public figures “must prove ‘actual malice’ only when the defamatory communication relates to their participation in the particular controversy with which they have voluntarily associated themselves”). https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 32 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 747 still retain control over their reputations if impugned on matters of purely private conduct. V. CONCLUSION There is much contemporary debate over whether libel law should continue to recognize heightened protection for writing and speaking about prominent people. Justice Clarence Thomas has outspokenly criticized the Sullivan principle and indicated interest in overruling it if given a vehicle to do so.164 Critics, including Thomas, contend that Sullivan emboldens publishers to carelessly disseminate unverified information about well-known personalities, secure in the knowledge that the law will protect all but the most brazen fabrications.165 Wholesale retreat from Sullivan, however, appears improbable. Politically conservative media organizations—those aligned with the solid majority of Supreme Court justices—have regularly invoked Sullivan in seeking to avoid liability for factually inaccurate coverage of prominent companies and individuals.166 Even the most aggressive of recent proposals to narrow the public-figure doctrine, advanced in Florida with the support of Governor Ron DeSantis, still maintains the heightened actual malice standard for prominent elected and appointed government officials.167 It is far more likely that the Supreme Court will clarify the boundaries of the public-figure doctrine, perhaps narrowing its scope so that relatively sympathetic small-fry plaintiffs have an easier time securing a day in front 164 See Dan McLaughlin, Justice Thomas, Alone, Wants to Revisit New York Times v. Sullivan, NAT’L REV. (June 27, 2022, 10:50 AM), https://www.nationalreview.com/corner/justice-thomas-alone-wants-to-revisit-newyork-times-v-sullivan/ [https://perma.cc/GTL8-XAVT] (describing Justice Thomas’ critique of Sullivan in opinion dissenting from Court’s refusal to grant certiorari petition). 165 See Yuri Vanetik, Time to End Media's Immunity to Rightful Defamation Claims, REAL CLEAR POL’Y (July 26, 2022), https://www.realclearpolicy.com/articles/2022/07/26/time_to_end_medias_immunity _to_rightful_defamation_claims_844383.html [https://perma.cc/TAY4-Y5HK] (characterizing Sullivan as “a dam-break disaster, after which the press was free to flood the country with the sewage of irresponsible reporting that these days, includes smear campaigns that often target private citizens”). 166 Adam Serwer, The Right-Wing War on Free Speech Could Backfire, ATLANTIC (Sept. 7, 2022, 11:50 AM), https://www.theatlantic.com/ideas/archive/2022/09/fox-news-trump-libeldefamation-nyt-sullivan/671330/ [https://perma.cc/9VBS-RP3L]. 167 See Mary Ellen Klas, Critics Across Political Spectrum Say Florida Defamation Bill Will Chill Free Speech, TAMPA BAY TIMES (Mar. 14, 2023), https://www.tampabay.com/news/florida-politics/2023/03/14/desantis-defamationlibel-anonymous-speech-first-amendment/ [https://perma.cc/3WTU-J7G3] (explaining Florida legislative proposal to narrow category of plaintiffs who would qualify as public figures). Published by University of Missouri School of Law Scholarship Repository, 2023 33 Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 7 748 MISSOURI LAW REVIEW [Vol. 88 of a jury.168 If judges and lawmakers succeed in lowering the barrier for defamation suits, making it easier for people who are not pervasively famous or powerful to recover damages, then the question of who is “public enough” to be a public figure will become even more pressing for the judiciary to resolve. The application of the limited public figure doctrine has been widely criticized as unpredictable, even before the explosion of social media.169 Uncertainty promotes self-censorship, because a rational speaker has no interest in risking damages by venturing into a gray area.170 First Amendment law has proven amply adaptable to generations of new technologies.171 There is no need to scrap the doctrinally sound limited public figure doctrine, but rather, there is a need to clarify how it applies in a world where two billion people worldwide are using YouTube and Instagram.172 Both “moving parts” of the doctrine—what it means to have effective access to media, and what it means to participate in a public controversy—need a twenty-first century refresh. Courts would plainly benefit from clearer guidance in categorizing a person whose access to “media” consists of a well-visited social media account, and whose role in 168 See David A. Logan, Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan, 81 OHIO ST. L.J. 759, 812 (2020) (arguing that Sullivan and Gertz have contributed to flood of online conspiracy theories and other low-value speech, and arguing for narrower standard including clarifying that people cannot become public figures “without proof of a truly ‘voluntary’ and meaningful effort to engage public attention”). 169 See Silver & Rumsey, supra note 19, at 57 (“For decades, scholars and judges alike have noted that it is notoriously difficult to apply the public figure doctrine[.]”). 170 As the Supreme Court said in NAACP v. Button: “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” 371 U.S. 415, 433 (1963); See also Erica Goldberg, First Amendment Contradictions and Pathologies in Discourse, 64 ARIZ. L. REV. 307, 321 (2022) (“Someone who is 95% sure that a statement about an important public figure – say that she accepts bribes – is true might censor himself for fear of either that 5% uncertainty, that juries will misunderstand the facts or misapply the law, or of the expenses of even a winning lawsuit.”). 171 See Matthew E. Kelley & Steven D. Zansberg, 140 Characters of Defamation: The Developing Law of Social Media Libel, 18 J. INTERNET L. 1, 8 (2014) (“From the telegraph and the motion picture to the Internet and interactive video games, courts have grappled with how to fit emerging technological and social changes into the appropriate legal framework. The Supreme Court, though, has observed that ‘whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary when a new and different medium for communication appears.’”). 172 See A. O’Connor, supra note 90, at 508 (stating that, in light of contemporary media landscape, “it is time to reconsider exactly what ‘access to media’ means. Without such a reconsideration, the access to media factor in the public figure test in defamation law is outdated”). https://scholarship.law.missouri.edu/mlr/vol88/iss3/7 34 LoMonte and Leibert: Internet Famous: Are Online Influencers and Micro-Celebrities Pub 2023] PUBLIC FIGURES UNDER DEFAMATION LAW? 749 a “public controversy” consists primarily of fame-seeking for marketing purposes. Published by University of Missouri School of Law Scholarship Repository, 2023 35