Regulating Instagram Posts

For millions of users around the world, posting a photo of a product on Instagram merely requires pressing a few buttons on their phone screens. But for many celebrities, such an action requires some more thought. By endorsing a product on Instagram, a celebrity may need to consider Federal Trade Commission (FTC) regulations because the agency requires an endorser who has a “relationship with a company” to disclose that relationship when posting about the company’s product online. The FTC, however, may be violating endorsers’ First Amendment rights, according to a recent paper. Lauren Myers, an associate at Kelly Drye & Warren LLP, insists that the disclosure requirement “chills” free speech in the context of “inherently personal” social media posts. To remedy the FTC’s overreach, Myers urges the FTC to evaluate whether the endorser intended the online post as commercial speech, not—as the FTC’s current…

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