Social media influencers have emerged as a predominant source of information for millions of Americans, contributing to the growth and spread of misinformation. Of particular concern are influencers who provide health advice—advice that, once taken, has the potential to injure or kill. Given the foreseeability of physical harms resulting from health misinformation, negligence liability seems a logical, yet underexplored, mechanism for policing harmful health influencing. But the law has not established the nature and extent of influencers’ duties. While influencers would likely meet even the narrowest jurisdictional standard for imposing a duty of care, duty determinations involve more than the reflexive application of doctrinal rules. They also require courts to balance the competing interests of the tortfeasor and the victim. In the context of influencer misinformation, this involves a clash of fundamental interests—namely, the follower’s right to physical liberty and the influencer’s liberty interest to speak. Ultimately, then, whether influencers owe a duty of care is a matter of both doctrine and public policy. This Article justifies the imposition of duties on social media influencers in the context of influencer health advice on both grounds before analyzing the potential First Amendment obstacles for negligence-based influencer speech-torts. Drawing on the unique nature of influencer speech, the Article highlights the difficulty of categorizing influencer speech as commercial speech and, in the alternative, proposes that negligent speech resulting in physical harm is a previously unrecognized category of uncovered speech. It concludes with observations on the importance of constitutional sorting beyond tort liability.

Continue reading Influencer Speech-Torts.

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