Facebook “Likes” Free Speech

Posted by · August 8, 2012 11:59 am

When Virginia sheriff B.H. Roberts decided to fire a group of employees in 2009 for “Liking” his political opponent’s Facebook page, Roberts likely had no idea that such a decision would set the stage for what will ultimately end up being a pivotal First Amendment case in this age of social media. Filing a First Amendment lawsuit against the sheriff, Daniel Ray Carter, the central plaintiff of the case, argued that clicking the “Like” button on the sheriff’s opponent’s Facebook page amounted to constitutionally protected speech, making his termination an illegal act of employer retaliation.

Unfortunately for Carter, the district court dismissed his claims, ruling that the act of clicking a “Like” button did not amount to speech “substantive” enough to warrant First Amendment protection. From the district court’s decision:

It is the Court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record…No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection.

Predictably, civil rights groups such as the American Civil Liberties Union quickly made known their disappointment with the court’s decision.

“It is hard to understand how revealing to the world that you ‘like’ a particular political candidate does not reveal one’s views or express an opinion,” wrote ACLU Senior Staff Attorney Aden Fine, reacting to the district court decision. “That many people today choose to convey what they like or which political candidates they support by ‘liking’ a web page rather than by writing the actual words, ‘I like this web page’ or ‘I like this candidate,’ does not matter, either from a practical or a legal perspective.”

Appealing the lower court’s decision, Carter’s case is now before the U.S. Court of Appeals for the Fourth Circuit. Likely to turn on the lower court’s ruling that the act of “liking” a Facebook page does not involve “actual statements,” this case stands to further broaden the Constitution’s protection of symbolic speech to include nonverbal actions taken on social media platforms. Encouraging the appellate court to make such a distinction, the ACLU filed a friend-of-the-court brief in support of Carter’s plea, which said, in part:

With “one click of a button,” an Internet user can upload or view a video, donate money to a campaign, forward an email, sign a petition, send a pre-written letter to a politician, or do a myriad of other indisputably expressive nature. Indeed, under the district court’s reasoning, affixing a bumper sticker to your car, pinning a campaign pin to your shirt, or placing a sign on your lawn would be devoid of meaning absent further information, and therefore not entitled to constitutional protection because of the minimal effort these actions require. All of these acts are, of course, constitutionally protected.

. . .

That many people today choose to convey what they like or which political candidates they support by “Liking” a Web page rather than by writing the actual words, “I like this Web page” or “I like this candidate,” is immaterial. Whether someone presses a “Like” button to express those thoughts or presses the buttons on a keyboard to write our those words, the end result is the same: one is telling the world about one’s personal beliefs, interests, and opinions. That is exactly what the First Amendment protects, however that information is conveyed.

Facebook also joined in Carter’s appeal with its own friend-of-the-court brief. Criticizing the lower court’s decision, the site argued that using “social networking and other online communities to rally support for political candidates and causes is a contemporary example of quintessential political speech.”

“The district court’s holding that “‘liking’ a Facebook page is insufficient speech to merit constitutional protection” because it does not “involve[] actual statements”…betrays a misunderstanding of the nature of the communication at issue and disregards well-settled Supreme Court and Fourth Circuit precedent,” the Facebook brief argued. “Liking a Facebook Page (or other website) is core speech: it is a statement that will be viewed by a small group of Facebook friends or by a vast community of online users.”

Given the judiciary’s long-established understanding that free speech protection extends to expressions of symbolic speech—including even controversial acts like flag burning—it is difficult to think that the district court’s decision will be upheld. However, given the novelty of social media to First Amendment matters, it should hardly come as a surprise that this case is encountering so much friction en route to obtaining the same protection that has been extended to far more obscure forms of expression.

In fact, given Facebook’s clever placement of user “Like” activity in both news feeds and endorsement-like ads in the margins, it is arguably a bit of a reach to be forced to demonstrate that such expression as symbolic. As the courts continue working to apply the Constitution to social media and other technologically advanced forms of communication, it would seem that a Facebook “Like” and the expression it perpetuates is about as literal as it gets.

What do you think? Should Facebook “Likes” (and by extension, other forms of social media endorsements) be considered free speech and given First Amendment protection? Share your opinion in the comments below.

For more on the Facebook “Likes” free speech case…