Facebook ‘Likes’ Declared Unprotected By First Amendment, According To JudgeBy: John Vinson - May 9, 2012
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The part of the first amendment we’ll be addressing today is the clause relating to free speech. It seems like we’re always having to determine where the line is when debating freedom of speech. Throughout our nation’s history, we’ve done an ample job of rallying behind the first amendment, and fighting for our right to express ourselves in a wide variety of channels. We’re now being challenged to define what is considered free speech on the internet. With the most recent case concerning the right to ‘Like’ something on Facebook.
What is speech, exactly?
According to Merriam-Webster’s, speech is defined as – the communication or expression of thoughts in spoken words.
We’ve expanded upon that definition in the legal world, protecting speech and expression through utilization of symbols. Flag burning is generally the mode of expression one thinks of when determining the most extreme case of first amendment protection. There are very few countries which allow their citizens to burn the nation’s greatest form of symbolism, and America can proudly say they’re one of those countries.
In Newport, Virginia, a case which has been ruled by a district court judge, declared a Facebook “like” unprotected by the first amendment. Below, you can ready the full summary of the case.
There are a few key factors to keep in mind when looking into the case. First, the case involves an election in 2009, when Sheriff B.J. Roberts was up for re-election, going up against Jim Adams who had once worked in the sheriff’s department. Roberts fired six of his employees, who then filed a lawsuit stating wrongful termination on grounds Roberts fired them because they supported Adams in the election. Public employees are protected by the first amendment, allowing them to express their political beliefs, unless it interferes with their duties. Even if the employees are supporting an opponent of an elected official.
In the document above, only four of the plaintiffs’ claims in the case are expanded upon. Two of the plaintiffs, Daniel Ray Carter and Robert McCoy, alleged the sheriff terminated them because he found out they supported Adams by “liking” his Facebook page. David Dixon claimed he was fired for having an Adams bumper sticker on his car. Finally, Debra Woodward claimed she made no attempts to make her support of Adams known.
For the two who made claims their termination took place due to the Facebook “liking”, the judge decided that while the sheriff did know of the Facebook “like”, it didn’t matter because according to him…
“It is clear, based on the Sheriff’s own admissions, that at some point he became aware of McCoy and Carter’s presence on Adams’ Facebook page. However, the Sheriff’s 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 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.”
While you could have a field day, dissecting, and retorting the judge’s claims, the document becomes even more interesting when you read his judgement based on David Dixon, who cited a bumper sticker as the reason for his termination…
“Dixon attempted to keep his political opinions secret. Having not alleged any specific speech, Dixon claims that he had a bumper sticker on his car, and that he was “pretty sure” others saw it. If the Court had evidence that the Sheriff was aware of the presence of the bumper sticker supporting Adams, then Dixon might have sufficiently alleged constitutionally protected speech. Counsel for the Plaintiffs had opportunities to inquire about others’ knowledge of the bumper sticker on Dixon’s car. However, they failed to do so. There is insufficient evidence in the record to establish that the Sheriff or his high-ranking officials had knowledge of the bumper stickers.”
Based on the statements regarding Facebook “likes” and bumper stickers, we are able to surmise that the judge is stating bumper stickers are more likely to be protected by the first amendment while Facebook “likes” are not. I’m not sure if you’re clasping your nose and shaking your head like I did when I first made this realization.
I never actively thought about it until now, but aren’t Facebook “likes” the bumper stickers of Facebook? Are they the greatest form of expression mankind has ever concocted? No. Then again, neither are bumper stickers. However, they are both modes of speech and expression.
For instance, I went through a list of a random Facebook friend’s “likes” and was able to determine the following.
– This person has strong feelings towards partisan church divisions
– This person likes The Colbert Report, and The Daily Show
– This person supports many local businesses
Considering I was able to take in this information due to their “likes” on Facebook, I’d say it’s a pretty strong indicator that they’re expressing something.
This case is most certainly a small drop in the proverbial bucket, as it was decided in a small eastern Virginia district court. However, it represents how one day we see a victory for the internet in the courts, and on another day bumper stickers are more protected than a nearly similar aspect of the online world.