Florida’s new social media legislation is a double landmark: It’s the first state law regulating online content moderation, and it will almost certainly become the first such law to be struck down in court.
On Monday, Governor Ron DeSantis signed into law the Stop Social Media Censorship Act, which greatly limits large social media platforms’ ability to moderate or restrict user content. The bill is a legislative distillation of Republican anger over recent episodes of supposed anti-conservative bias, like Twitter and Facebook shutting down Donald Trump’s account and suppressing the spread of the infamous New York Post Hunter Biden story. Most notably, it imposes heavy fines—up to $250,000 per day—on any platform that deactivates the account of a candidate for political office, and it prohibits platforms from taking action against “journalistic enterprises.”
It is very hard to imagine any of these provisions ever being enforced, however.
“This is so obviously unconstitutional, you wouldn’t even put it on an exam,” said A. Michael Froomkin, a law professor at the University of Miami. Under well established Supreme Court precedent, the First Amendment prohibits private entities from being forced to publish or broadcast someone else’s speech. Prohibiting “deplatforming” of political candidates would likely be construed as an unconstitutional must-carry provision. “This law looks like a political freebie,” Froomkin said. “You get to pander, and nothing bad happens, because there’s no chance this will survive in court.” (The governor’s office didn’t respond to a request for comment.)
The Constitution isn’t the only problem for the new law. It also conflicts with Section 230 of the Communications Decency Act, a federal law that generally holds online platforms immune from liability over their content moderation decisions. Section 230 has become an object of resentment on both sides of the political aisle, but for different reasons. Liberals tend to think the law lets online platforms get away with leaving too much harmful material up. Conservative critics, on the other hand, argue that it lets them get away with taking too much stuff down—and, worse, that it allows them to censor conservatives under the guise of content moderation.
Regardless of the merits of these critiques, the fact is that Section 230 remains in effect, and, like many federal statutes, it explicitly preempts any state law that conflicts with it. That is likely to make any attempt to enforce the Stop Social Media Censorship Act an expensive waste of time. Suppose a candidate for office in Florida repeatedly posts statements that violate Facebook’s policies against vaccine misinformation, or racism, and Facebook bans their account. (Like, say, Laura Loomer, a self-described “proud Islamophobe” who ran for Congress last year in Florida after being banned from Facebook and many other platforms.) If she sues under the new law, she will be seeking to hold Facebook liable for a decision to remove user content. But Section 230 says that platforms are free “to restrict access to or availability of material” as long as they do so in good faith. (Facebook and Twitter declined to comment on whether they plan to comply with the Florida law or fight it in court. YouTube didn’t respond to a request for comment.)
Section 230 will probably preempt other aspects of the Florida law that are less politically controversial than the prohibition on deplatforming politicians. For example, the Florida statute requires platforms to set up elaborate due process rights for users, including giving them detailed information about why a certain piece of content was taken down, and to let users opt into a strictly chronological newsfeed with no algorithmic curation. Both of these ideas have common-sense appeal among tech reformers across the political spectrum, and versions of them are included in proposed federal legislation. But enforcing those provisions as part of a state law in court would most likely run afoul of Section 230, because it would boil down to holding a platform liable for hosting, or not hosting, a piece of user-generated content. Florida’s legislature has no power to change that.
Over the last five years, influencer marketing has grown into a multibillion-dollar industry, with brands large and small coming to view the practice as a less ham-fisted way to hawk their products. In the early days, brands that sent an influencer free products or offered to pay them a small commission in exchange for their consideration would often receive a shoutout or casual promotion. But as more and more companies came to see the practice as an invaluable marketing tool, the power balance flipped, and influencers began to command significantly higher fees for each post, mention, or product placement.
That didn’t slow down advertisers’ thirst for an effective way to covertly raise the profile of their brand in the eyes of consumers. Average payment rates only continued to soar, especially after influencers started to retain agents and managers. Today, influencers are all over social media platforms like Instagram, YouTube, TikTok, Twitch, Tumblr, and Snapchat, and sponsored content has become so ubiquitous that some platforms, like Instagram, now have built-in tools to help influencers disclose and promote their paid partnerships in Stories or feed posts.
The digital marketplace model pioneered by PayPerPost is booming, with thousands of companies now vying to play matchmaker between brands and content creators to craft the perfect #ad. Grapevine and Famebit are two of the most popular. Famebit, which connects YouTubers and Instagram users with sizable followings to companies interested in sponsored content, took off in 2016 after it was purchased by YouTube. The company has since integrated Famebit into its platform, making it easier for content creators looking to monetize their YouTube accounts to find an ad campaign that aligns with their interests. It seems like only a matter of time before Instagram attempts something similar.
On YouTube and Instagram, product placement deals are now common, as are the use of affiliate marketing links and sponsored coupon codes. Popular YouTuber Sanders Kennedy, who chronicles drama in the influencer world, told WIRED that a brand once offered him a couple thousand dollars to place a beverage on his desk while filming a video. A 2018 WIRED investigation into the influencer marketing industry found that payouts increase if the influencer tags or shouts out the brand specifically, but covert endorsements are often preferred.
Influencers like Luka Sabbat, a model-turned-actor with two million followers on Instagram, can charge upwards of $40,000 to promote products in story and feed posts.The cost of a single promotional photo posted by Instagram influencer with a million followers starts at $10,000. YouTube is more expensive. A video from a YouTuber with 3 million subscribers will cost at least $40,000. Influencers charge up to $10,000 to $30,000 more to post a negative review of a company’s competitor, the investigation found.
Influencer payout rates have risen so quickly that advertisers that used to be some of the industry’s biggest advocates now feel priced out of the market. Marlena Stell, a popular beauty influencer and entrepreneur, relied on influencers to promote her cult cosmetics brand Makeup Geek since its launch in 2011. However, she cut back on the practice in 2018, telling WIRED that content creators had begun to regularly demand $50,000 to $60,000 per video.
These prices are a function of the fact that, online, value is quantifiable. Or at least it’s supposed to be. The worth of an idea, person, movement, or meme is based on how many likes, views, clicks, and shares it has. An idea expressed in a tweet that garners thousands of likes seems inherently more valuable and widely accepted than one with four. An Instagram user with tens of thousands of followers is assumed to have an audience of that many real people, and a YouTube video with millions of views is thought to have captured the attention of millions of actual viewers. But those interactions can easily be bought.
That an influencer’s potential earnings are directly linked to their reach has come as a major boon for fake engagement marketplaces, where key metrics like followers, views, and likes can be purchased anonymously online for cheap. As the influencer marketing industry grows increasingly overheated, with more and more brands getting onboard each quarter, the problems posed by rampant engagement fraud have only worsened. According to cybersecurity firm Cheq, influencer marketing fraud is projected to cost brands $1.3 billion in 2019 alone.
Which, of course, has led to the rise of influencer fraud detectors. Some companies rely on human investigators to suss out fake or inflated accounts, while others use proprietary programs designed to spot signs of fakery, but it’s largely a cat and mouse game. One of the simplest tricks used by industry experts to tell whether an Instagram influencer padded their stats—comparing the amount of likes per post to the influencer’s follower count—won’t be possible if Instagram goes ahead with its plans to do away with public like counts. (Instagram, for its credit, hopes that getting rid of like counts will disincentivize fake engagement peddling more generally, but that seems unlikely.)
That didn’t slow down advertisers’ thirst for an effective way to covertly raise the profile of their brand in the eyes of consumers. Average payment rates only continued to soar, especially after influencers started to retain agents and managers. Today, influencers are all over social media platforms like Instagram, YouTube, TikTok, Twitch, Tumblr, and Snapchat, and sponsored content has become so ubiquitous that some platforms, like Instagram, now have built-in tools to help influencers disclose and promote their paid partnerships in Stories or feed posts.
The digital marketplace model pioneered by PayPerPost is booming, with thousands of companies now vying to play matchmaker between brands and content creators to craft the perfect #ad. Grapevine and Famebit are two of the most popular. Famebit, which connects YouTubers and Instagram users with sizable followings to companies interested in sponsored content, took off in 2016 after it was purchased by YouTube. The company has since integrated Famebit into its platform, making it easier for content creators looking to monetize their YouTube accounts to find an ad campaign that aligns with their interests. It seems like only a matter of time before Instagram attempts something similar.
On YouTube and Instagram, product placement deals are now common, as are the use of affiliate marketing links and sponsored coupon codes. Popular YouTuber Sanders Kennedy, who chronicles drama in the influencer world, told WIRED that a brand once offered him a couple thousand dollars to place a beverage on his desk while filming a video. A 2018 WIRED investigation into the influencer marketing industry found that payouts increase if the influencer tags or shouts out the brand specifically, but covert endorsements are often preferred.
Influencers like Luka Sabbat, a model-turned-actor with two million followers on Instagram, can charge upwards of $40,000 to promote products in story and feed posts.The cost of a single promotional photo posted by Instagram influencer with a million followers starts at $10,000. YouTube is more expensive. A video from a YouTuber with 3 million subscribers will cost at least $40,000. Influencers charge up to $10,000 to $30,000 more to post a negative review of a company’s competitor, the investigation found.
Influencer payout rates have risen so quickly that advertisers that used to be some of the industry’s biggest advocates now feel priced out of the market. Marlena Stell, a popular beauty influencer and entrepreneur, relied on influencers to promote her cult cosmetics brand Makeup Geek since its launch in 2011. However, she cut back on the practice in 2018, telling WIRED that content creators had begun to regularly demand $50,000 to $60,000 per video.
These prices are a function of the fact that, online, value is quantifiable. Or at least it’s supposed to be. The worth of an idea, person, movement, or meme is based on how many likes, views, clicks, and shares it has. An idea expressed in a tweet that garners thousands of likes seems inherently more valuable and widely accepted than one with four. An Instagram user with tens of thousands of followers is assumed to have an audience of that many real people, and a YouTube video with millions of views is thought to have captured the attention of millions of actual viewers. But those interactions can easily be bought.
That an influencer’s potential earnings are directly linked to their reach has come as a major boon for fake engagement marketplaces, where key metrics like followers, views, and likes can be purchased anonymously online for cheap. As the influencer marketing industry grows increasingly overheated, with more and more brands getting onboard each quarter, the problems posed by rampant engagement fraud have only worsened. According to cybersecurity firm Cheq, influencer marketing fraud is projected to cost brands $1.3 billion in 2019 alone.
Which, of course, has led to the rise of influencer fraud detectors. Some companies rely on human investigators to suss out fake or inflated accounts, while others use proprietary programs designed to spot signs of fakery, but it’s largely a cat and mouse game. One of the simplest tricks used by industry experts to tell whether an Instagram influencer padded their stats—comparing the amount of likes per post to the influencer’s follower count—won’t be possible if Instagram goes ahead with its plans to do away with public like counts. (Instagram, for its credit, hopes that getting rid of like counts will disincentivize fake engagement peddling more generally, but that seems unlikely.)
A return to a less quantifiable era of influence may seem like a loss, but if anything it’s the opposite. Trust, ultimately, is unquantifiable. And perhaps in the absence of futile attempts to assess it, gooey amorphous authenticity will reign once more.
Learn More
Inside the Pricey War to Influence Your Instagram Feed When Sahara Lotti started her lash extensions company, Lashify, in 2017, she didn’t know what she was getting herself into. It wasn’t making and selling fake lashes that stumped her—she was more than prepared for that—but rather the bizarre and shadowy industry that seemed to envelop her. In interviews, more than a dozen people involved in influencer marketing expressed concerns over the ethics of the burgeoning industry, where brands routinely shell out well over $60,000 in exchange for one video review—or upwards of $85,000 to publicly disparage a competitor’s product.
When Influencers Switch Platforms—and Bare It All On Instagram, an influencer is helping sell products, essentially to add a degree of cool to, say, sunglasses or dietary supplements. On OnlyFans, influencers are themselves the product. Partnerships and #sponcon can lead to considerable paydays, but there now exists an additional source of revenue with the rise of bare-all subscription fandom. In front of a camera, and sometimes with multiple partners, they are no longer just influencers but digital sex deities.
Fighting Instagram’s $1.3 Billion Problem—Fake Followers As influencers strive for ever-higher engagement numbers, the battle between fake followers and fake-follower-detection tools is turning into an arms race. Not being rubes, influencer economy participants know that signing a contract isn’t enough to certify continuous truthfulness. Online tricks evolve like Pokémon, though, and fake followers are getting much harder to identify.
Colleges Need Influencers, but Do Influencers Need College? Colleges try to leverage the social media savvy of their students with “social media ambassador” programs that help them advertise to prospective new students, raise the schools’ profiles, and educate their current students about school programs. And for some influencers, college can be a windfall, landing them brand deals to market dorm furnishings, Victoria’s Secret underwear, and tooth-straightening solutions to their fellow students. For others, college just gets in the way of their real passion.
Byeeeee, Logan Paul: Brands Prefer ‘Micro Influencers’ Now Endorsements are no longer the sole domain of the broadly popular megawatt star. Instead, companies want to work with the smaller, more niche internet personalities they’re calling “micro influencers”—generally speaking, people with followings of about 50,000. Limiting the scope of a potential scandal is only one of the benefits of working with a micro influencer. Analysts argue that micro influencers’ intimate, engaged communities are more likely to trust and buy what the influencer recommends.
YouTube and Pinterest Influencers Almost Never Disclose Marketing Relationships Research from Princeton University indicates that the vast majority of affiliate marketing relationships go undisclosed by influencers on platforms like YouTube and Pinterest. The vast majority of disclosures that the Princeton researchers did find don’t even abide by FTC guidelines. In 2013, the agency began requiring that affiliate links embedded within product reviews include a disclosure.
Last updated December 3, 2019.
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