A Picture Is Worth a Thousand Material-Connection Disclosures: Endorsers, Instagram, and the Federal Trade Commission’s Endorsement Guides

by Lauren Myers

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Abstract

With the spread of social-media advertising, the Federal Trade Commission (FTC) has made many attempts to regulate the burgeoning field. However, the complexity of social media makes it difficult to regulate without violating the First Amendment. This difficulty is especially true for Instagram, a social-media platform where pictures—a form of speech protected by the First Amendment—are the primary focal point. This Note argues that the FTC’s material-connection disclosure requirement potentially violates the First Amendment as it applies to Instagram advertisements. Instead of focusing on audience perception when determining whether an endorser must include a material-connection disclosure, the FTC should instead consider the poster’s intent in sharing an Instagram post to prevent any chilling of speech or violations of posters’ First Amendment rights.

A Picture Is Worth a Thousand Material-Connection Disclosures: Endorsers, Instagram, and the Federal Trade Commission’s Endorsement Guides

by Lauren Myers

Click here for a PDF file of this article

Abstract

With the spread of social-media advertising, the Federal Trade Commission (FTC) has made many attempts to regulate the burgeoning field. However, the complexity of social media makes it difficult to regulate without violating the First Amendment. This difficulty is especially true for Instagram, a social-media platform where pictures—a form of speech protected by the First Amendment—are the primary focal point. This Note argues that the FTC’s material-connection disclosure requirement potentially violates the First Amendment as it applies to Instagram advertisements. Instead of focusing on audience perception when determining whether an endorser must include a material-connection disclosure, the FTC should instead consider the poster’s intent in sharing an Instagram post to prevent any chilling of speech or violations of posters’ First Amendment rights.