Facebook “Likes” Get First Amendment Protection

Facebook Like

(Photo credit: Wikipedia.)

Nothing has muddied the waters of free speech discourse in quite the way that social media has. Among other things, we have seen employers demand access to people’s “private” social media profiles and posts, questions raised about the NSA access to our data, and many other free-speech-related issues.

Now, the Fourth U.S. Circuit Court of Appeals in Richmond, VA, has taken a step in a positive direction by reversing a lower court ruling that said merely “liking” a Facebook page was insufficient speech to merit constitutional protection. In short, they have decided that the “Like” button constitutes free speech and is protected as such.

The original case that brought this to the appellate court was a lawsuit filed by six employees of Hampton Sheriff B.J. Roberts, who they claim fired them for supporting his opponent in his victorious 2009 reelection bid. The suit was brought on the First Amendment grounds, and was based on one employee, Daniel Ray Carter, who had “liked” the Facebook page of Roberts’ opponent, Jim Adams.

CBS in Philadelphia notes the verdict and the reasoning for the original verdict:

U.S. District Judge Raymond Jackson in Norfolk had ruled in April 2012 that while public employees are allowed to speak as citizens on matters of public concern, clicking the ‘like’ button does not amount to expressive speech. In other words, it’s not the same as actually writing out a message and posting it on the site.

Jackson acknowledged that other courts have ruled that Facebook posts are constitutionally protected speech, but he said in those cases there were ‘actual statements.’ Simply clicking a button is much different and doesn’t warrant First Amendment protection, he wrote. In his ruling, Jackson acknowledged the need to weigh whether the employee’s speech was a substantial factor in being fired. But the judge wrote that the point is moot if ‘liking’ something isn’t constitutionally protected speech.

The case then moved to the appellate court, where the original verdict was unanimously overturned. Reuters brings us the ruling details:

‘Liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it,’ Chief Judge William Traxler wrote for a three-judge panel of the Richmond, Virginia-based appeals court. ‘It is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.’

Many parties, not least of them being Facebook, applauded the victory. CNET quotes the ACLU:

‘This ruling rightly recognizes that the First Amendment protects free speech regardless of the venue, whether a sentiment is expressed in the physical world or online. The Constitution doesn’t distinguish between ‘liking’ a candidate on Facebook and supporting him in a town meeting or public rally,’ Ben Wizner, director of the ACLU Speech, Privacy & Technology Project, said in a statement to CNET.

Brian Fung of The Washington Post notes that while this is a victory, it still opens up a veritable rats’ nest of related issues:

While this is an unquestionable victory for the First Amendment, it actually raises more questions than it answers. Take the Facebook like widget beside this article. If clicking that button is a form of speech, does that imply that all the sharing buttons beneath it are also opportunities for speech? Judging by the ruling, one might think so.

Yet the Facebook like is also slightly different from other sharing buttons in that clicking it not only causes you to speak, but — in the eyes of the court — the speech that comes out is positive. For anyone who’s shared an article they hated, the dilemma here is apparent. By the court’s logic, the like is considered valid speech mainly because it produces an automated statement of support via Facebook’s technology. It also happens to be symbolic speech because the ‘thumbs-up’ icon implies support.

This could as easily be applied to the Google Plus “+1” button, which also seems to denote tacit approval, open to interpretation. Fung writes:

Does that mean that if I share something on another social network that doesn’t explicitly say ‘Brian Fung likes this,’ or if it fails to graphically indicate my support of the item in question, then it isn’t speech? What happens when I only ironically like something but don’t literally support what’s being liked? What if the design on the button isn’t a thumbs-up but a ‘Tweet’ button? Are retweets really endorsements now? Is the fact that I linked to Slate just now an endorsement of Slate?

What if you find yourself, as I often do, liking a number of pages that have nothing to do with my personal inclinations because they are resources for a story or column?

These are thorny questions that have evaded being addressed legally in any significant fashion. Even though litigation and legislation move at a snail’s pace compared to the social media, this might be another small sign that they are beginning to catch up.

About George Williams

George “Loki” Williams is the community and brand manager for award wining game company Savage Mojo, Ltd. and the owner of SocialGumbo, LLC, an online consultancy specializing in Web content and online communications. Loki has produced content for clients including the Open Society Institute, National Association of Broadcasters, Kobold Press, and Kaiser Permanente. His work has been seen or written about in The New York Times, The BBC, Air America, The Gambit Weekly, and NOLA.com, among others.

  

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