Does your Facebook 'Like' count as free speech?

21 hrs.

Helen A.S. Popkin

A ruling by a Virginia district court last week doesn't directly impact how most of us use Facebook, but it could. Like so many open questions about the Internet and free speech, we can expect similar court casesfor years to come. According to the court's opinion in Bland v. Roberts 2012, clicking the Facebook's "Like" button isn't "sufficient speech to garner First Amendment protection."

The case in question came before the U.S. District Court of Eastern Virginia after B.J. Roberts of the Hampton, Va. Sheriff's Department fired five employees following his successful reelection in 2009. Budget reasons, unsatisfactory work performance and hindrance of "the harmony and efficiency of the office" were the reasons Roberts gave for letting them go. The fired employees said otherwise.

In taking their case to court, the plaintiffs -- Bobby Bland, David Dixon, Robert McCoy, John Sandhofer and Debra Woodward --said they were dismissed because before the election,they each "Liked" the Facebook campaign page of Roberts'opponent, Jim Adams. Yet, in a decision that flummoxes digital law scholars, the court decided that whether or not Robertsknew his employees "Liked" the campaign page of his political opponent, their "Likes" still weren't considered free speech:

[Roberts'] knowledge of the posts only becomes relevant if the court finds the activity of liking a Facebook page to be constitutionally protected. It is the courts 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.

"It's a somewhat odd decision that a Facebook "Like" is not protected speech," Jeff Hermes, director of the Digital Media Law Project, Berkman Center for Internet & Societytold me. "The judge was essentially devaluing the 'Like' as speech because ofhow simple it is to do."

With Facebook so ingrained in our daily lives, many of us no doubt click "Like" for stories or products or status updates without giving it much thought. Historically however, even simple actions around free speechhave been protected under the First Amendment, Hermes said, noting the off-cited Tinker V. Des Moines Independent Community School District 1969. In that case, the Supreme Court upheld the First Amendment rights of three public schoolstudents who weresuspended for wearing black arm bands to school in protest of the Vietnam War. "It was a very simple activity that courts recognize as expressive," Hermes said.

The American Civil Liberites Union brought the Tinker case before the courts, and in similar fashion, the civil rightsorganization has something to say about the same principle behind a simple Facebook "Like." In a post on the ruling, Aden Fine of the ACLU's Speech, Privacy and Technology Project writes:

It is hard to understand how revealing to the world that you like a particular political candidate does not reveal ones views or express an opinion. It does exactly that. 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. Whether you press a like button to express those thoughts or you press the buttons on a keyboard to write out those physical words, the end result is the same: you are telling the world about your personal beliefs and interests. That is exactly what the First Amendment protects, however that information is conveyed.

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Does your Facebook 'Like' count as free speech?