By: Sumra Wahid
On September 21, 2021, TikTok user @laurenzarras posted a video of her surprising her boyfriend, now dubbed “Couch Guy” on the internet, at college. Within hours, users flooded her comments suggesting that her boyfriend’s reaction was an obvious tell that he was cheating on her with one of the girls sitting next to him. By the end of the week, the video had 60 million views and inspired weeks’ worth of reaction, analysis, and recreation videos. Lauren was in the comments of many of those videos defending her relationship. Lauren’s viral video garnered her 188.2 thousand followers on TikTok, several stories from major news articles including Rolling Stone and NBC News and inspired the release of her merchandise. If Lauren decides to sue a news outlet or one of the thousands of social media users for defamation, would their words be protected by the First Amendment, leaving her no recourse?
The United States Supreme Court has taken efforts to balance defamation and libel actions with First Amendment protections. One such effort has been the creation of the New York Times Co. v. Sullivan standard, which requires public officials to prove that the defamatory statements made against him were published with actual malice in order to bring defamation claim. This standard was extended to public figures, including what the court defined as a limited-purpose public figure. In order to be classified as a limited-purpose public figure, the court considers the individual’s access to media, assumption of the risk, and whether the individual voluntarily thrust themselves into a specific public controversy in order to influence the outcome.
The rise of social media makes it more difficult to determine who qualifies as a “limited-purpose public figure” as an individual can gain a mass following with a single post or video. Public figures require regular and continuing access to media. With access to the internet in the palm of our hands, including media outlets such as Twitter and Instagram, anyone with a social media account could meet the accessibility requirement necessary to become a public figure. The Supreme Court clarified that mere notoriety, such as that of a socialite, is not enough to become a public figure. But when the socialites of today can issue a counternarrative the click of button, the access to media factor of the limited-purpose public figure test runs the risk of outweighing the notoriety of the person being defamed. The courts must attempt to reconcile accessibility of the internet with the actual notoriety of the individual claiming defamation, in order to properly apply this standard and differentiate the average social media user from the social media influencer.
When it comes to classification as a limited-purpose public figure, an individual meets the threshold when they have voluntarily thrust themselves into a public controversy to influence the outcome. The nature of social media platforms requires courts to determine whether ordinary postings on an individual’s personal social media account are sufficient to constitute voluntarily thrusting themself into the public sphere. Courts are split on how to define voluntariness when it comes to the Internet. The D.C. Court of Appeals takes an inherently private approach to internet voluntariness. The Ninth Circuit takes an inherently public approach, equating a media outlet with a public forum. In D.C. v. R.R., the court treated the internet, particularly posting on websites such as MySpace, Facebook, and YouTube, as a private forum. Notably, the court did not make a distinction between the private and public account when classifying social media websites as private forums. A uniform definition of voluntariness from the Supreme Court would allow social media users to better understand the potential risks before posting.
Even if courts come to a consensus on voluntariness, the limited-purpose public figure inquiry would require judges to assess when social media activity renders involvement on matters of public controversy. Social media is generally seen as a lighthearted forum “where users vent, get into heated debates, and crack jokes.” While courts throughout the country have commonly seen social media defamation as matters of opinion, in the recent years, social media has been used to tackle serious topics and disseminate opinions and information on topics of public interest. For example, during the Black Lives Matter protests in 2020, social media platforms were flooded with content by users of varying popularity sharing information, opinions, and live footage of protests throughout the country. When social media posts combine facts with opinions, it becomes a very real possibility that any social media activity expressing an opinion on a subject could create a public controversy. This could exponentially expand who could be labeled a limited purpose public figure into any social media user who has posted on a matter of public interest.
Under the current application of Gertz by the Supreme Court, interacting and posting on social media could be sufficient to classify a typical social media user as a limited purpose public figure. It is concerning that a single post by a social media user about a public controversy can strip them of civil defamation law protections. An individual should feel free to express their views on matters of public interest without the fear that if their views gain attention, they are vulnerable to defamatory statements without a means of recourse. Social media users who go viral from the oddball post and continue to grow as a result are distinguishable from the social media influencer, whose online presence is meant for engagement with unknown users. While courts have found ease applying the current limited-purpose public figure test to influencers whose influence can be quantified by sponsorships and brand deals, courts must consider the new and innovative ways that everyday individuals will use social media. These uses may invite libelous or defamatory statements, and the court will soon have to address the question of what makes a limited-purpose public figure in the age of viral fame.
 Lauren Zarras (@laurenzarras), TikTok (Sep. 21, 2021), https://www.tiktok.com/@laurenzarras/video/7010543290449693957?sender_device=pc&sender_web_id=7023546082077640198&is_from_webapp=v1&is_copy_url=0.
 Rebecca Jennings, Couch Guy and the nightmare of going viral, Vox (Oct. 12, 2021) https://www.vox.com/the-cgoods/22716772/couch-guy-tiktok-explained (explaining the viral TikTok video infamously referred to as #couchguy).
 See id. (linking TikTok’s #couchguy search page and a video by user @thinksplendid who analyzes the behavior of the three girls on the couch to conclude they were not loyal friends and stating there were “worse things than being single” in reference to Lauren’s boyfriend’s reaction).
 See We Asked a Body Language Expert: What’s Really Happening in the Couch Guy TikTok?, Rolling Stone (Oct. 13, 2021) https://www.rollingstone.com/culture/culture-news/tiktok-couch-guy-dont-let-this-flop-1241161/ (recalling an inconclusive analysis of the reactions in Lauren’s video on a Rolling Stone affiliated podcast); Kalhan Rosenblatt, ‘Couch Guy’ is the latest viral TikTok to show how internet sleuthing can be toxic, NBC News (Oct. 8, 2021) https://www.nbcnews.com/pop-culture/viral/couch-guy-latest-viral-tiktok-show-how-internet-sleuthing-can-n1281041 (discussing the emerging concerns and benefits of receiving a critical lense on the internet); Lauren Zarras (@laurenzarras) TikTok (Oct. 4, 2021), https://www.tiktok.com/@laurenzarras/video/7015250633309637894?sender_device=pc&sender_web_id=7019017059679176198&is_from_webapp=v1&is_copy_url=0 (promoting the sale of Couch Guy t-shirts for twenty-five dollars each).
 376 U.S. 254, 279–80 (1964) (holding the Constitutional protections of the First Amendment require a public official in a defamation claim to prove there was either actual knowledge of a statement’s falsity or a reckless disregard for the statement’s veracity).
 See Curtis Publishing Co. v. Butts, 388 U.S. 130, 155 (1967) (extending the New York Times standard to a public figure in holding that a well-known university football coach and university athletic director classified as a public figure because of his position, his sufficient command of public interest, and sufficient access to means of counterargument); Gertz v. Robert Welch, Inc., 418 U.S. 323, 351–52 (1974) (holding that an attorney representing the family of a murder victim in a publicized case was not a public figure, despite being well known in some circles, because he did not thrust himself into the public vortex or engage with the public to influence the outcome of the case).
 See Gertz, 418 U.S. at 344–45.
 See Hutchinson v. Proximare, 433 U.S. 111, 136 (1979) (holding that a research behavioral scientist who received government funding could not be classified as a public figure because he did not have regular and continuing access to media, which is one of the accouterments of having become a public figure); see also Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 164 (placing emphasis on the fact that a public figure has significantly greater access to channels of effective communication to offer up counter speech to defamatory statements).
 See Time, Inc. v. Firestone, 424 U.S. 448, 453 (holding a socialite going through a public divorce was not a limited-purpose public figure).
 See generally Stephen Parkhurst & Tony Manfred, The 19-year-old Instagram model who quit social media says haters are just proving her point, Insider (Nov. 4, 2015), https://www.businessinsider.com/the-19-year-old-instagram-model-who-quit-social-media-says-haters-are-just-proving-her-point-2015-11 (discussing how Instagram model Essena O’Neill responded to assertions that she was a hypocrite by posting a video response on her website after deleting Instagram).
 See Waldbaum v. Fairchild Publi’n, 627 F.2d 1287, 1292 (D.C. Cir. 1980) (defining a limited-purpose public figure as an individual who voluntarily places themself into the public sphere with the goal of influencing the outcome).
 See generally Tipton v. Warshavsky, 32 F. App’x 293 (9th Cir. 2002) (creating a very low threshold for a user to be considered a limited purpose public figure); Waldbaum 627 F.2d at 1292 (requiring an individual intend to or be reasonably expected to have a “major impact on the resolution of a specific public dispute that has foreseeable and substantial ramifications for persons beyond its immediate participants”).
 See Waldbaum 627 F.2d at 1929 (tailoring the scope of a limited purpose public figure to exclude those who do not intend to be a public figure and those who do not have enough influence or “reach” to have a major effect on the outcome of a public dispute).
 See Tipton v. Warshavsky, 32 F. App’x 293, 295 (9th Cir. 2002) (finding an individual who posted a video on the pornographic website ourfirsttime.com invited the attention and comments of users a limited purpose public figure).
 182 Cal. App. 4th 1190, 1227-1228 (Cal. Ct. App. 2010) (asserting that a website created by a student for his singing career where users could post public messages did not subject him to a public forum); see also DuCharme v. Int’lBrotherhood of Electr. Workers, 110 Cal. App. 4th 107, 117 (Cal. Ct. App. 2003) (holding mere publication of something on a public website does not make it a matter of public interest).
 See Du Charme, 110 Cal. App. 4th at 119 (considering the difference between an issue that concerns the public at large with a limited, but defined public, but failing to consider any difference between an account that is publicly viewable to an account that is private).
 Hadley M. Dreibelbis, Social Media Defamation: A New Legal Frontier Amid the Internet Wild West, 16 Duke J. Const. L. & Pub. Pol’y 245, 256 (2021) (discussing the challenges that the multi-faceted nature of social media present to current defamation law); see also Jacobus v. Trump, 51 N.Y.S.3d 330, 338–39 (N.Y. Sup. Ct. 2017) (determining that the context of a statement is key to evaluation of defamatory statements and the hyperbole advanced on social media warrants an understanding of the statement as an opinion rather than a fact).
 Jane Hu, The Second Act of Social-Media Activism, The New Yorker (Aug. 3, 2020) https://www.newyorker.com/culture/cultural-comment/the-second-act-of-social-media-activism (discussing the impact of social media on activism in the wake of George Floyd’s murder).
 Id. (explaining how trivialization of significant moments can happen when a campaign becomes mainstream on social media).
 See Gertz v. Robert Welch, Inc., 418 U.S. 323, 351–52 (1974) (holding that an attorney representing the family of a murder victim in a publicized case was not a public figure, despite being well known in some circles, because he did not thrust himself into the public vortex or engage with the public to influence the outcome of the case).
 See Maureen T. DeSimone, Insta-Famous: Challenges and Obstacles Facing Bloggers and Social Media Personalities in Defamation Cases, 11 Mod. Am. 70, 89 (2018) (describing that by utilizing advertising and marketing techniques, influencers turn their personal lives into business plans); 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, 347 (2020) (contending that micro-influencers create consumer trust when advertising for local businesses that satisfies the voluntary influence of a limited-purpose public figure).