Should Facebook Likes Be Protected As Free Speech?

    August 10, 2012
    Josh Wolford
    Comments are off for this post.

Is clicking the “like” button on Facebook, something millions of users do dozens of times every single day, an act of protected free speech?

According to the purveyors of the like button, yes, it most certainly is.

Facebook makes this assertion in a brief filed in support of a Deputy Sheriff who was fired, he says, because he liked his boss’ opponent on the social network.

According to court documents, Deputy Sheriff Daniel Ray Carter of Hampton, Virginia “liked” the page of “Jim Adams for Hampton Sheriff.” As you’re well aware, when a user likes a page on Facebook, that information is pushed to ths user’s Timeline and their friends’ news feeds. Apparently, this didn’t go over too well with Sheriff B.J. Roberts, Carter’s boss and then incumbent in the election.

How far should free speech extend in this country? Should a “like” be protected as free speech? How about a retweet or a +1, for that matter? Let us know in the comments.

Roberts ended up winning and Carter was promptly fired from his position. He claims that he was fired for liking the campaign page of Robert’s opponent, Jim Adams. Of course, firing someone for their political beliefs is a no-no in most areas of the country, so Carter sued.

But he was unsuccessful in his suit, as the judge on the case ruled that a Facebook “like” is not protected as free speech, as it doesn’t contain “actual statements.”

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.

Carter wasn’t the only employee fired for their alleged support of the opposing candidate. Another man, David Dixon, was also terminated. He claimed that his firing was due to a bumper sticker. Here’s what the same judge had to say about Dixon’s assertions:

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.

Translations: In this specific case, Dixon failed to establish the fact that his superior had seen the bumper sticker and therefore the firing could have been politically motivated. But if he had, he would’ve had a case for protected free speech.

Facebook likes = insufficient. Bumper stickers = protected. That’s the message we get here.

Fast forward a bit, and Carter has appealed the decision. Now, Facebook is going to bat for him, arguing that their “like” is free speech in the same way that a political bumper sticker is free speech. “When a Facebook User Likes a Page on Facebook, she engages in speech protected by the First Amendment,” says Facebook in the brief.

They go on:

The district court’s holding that“‘liking’ a Facebook page is insufficient speech to merit constitutional protection” because it does not “involve actual statements,” J.A. 1159, betrays amisunderstanding of the nature of the communication at issue and disregards well-settled Supreme Court and Fourth Circuit precedent. 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.

When Carter clicked the Like button on the Facebook Page entitled “Jim Adams for Hampton Sheriff,” the words “Jim Adams for Hampton Sheriff” and a photo of Adams appeared on Carter’s Facebook Profile in a list of Pages Carter had Liked, J.A. 570, 578 – the 21st-century equivalent of a front-yard campaign sign.

If Carter had stood on a street corner and announced, “I like Jim Adams for Hampton Sheriff,” there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection.

Strong argument. Although we won’t know how the appeals court rules, well, until they rule – it’s safe to say that Mr. Carter has a solid chance to win this one. I just logged onto Facebook and saw that one of my friends liked the page “Dogs Against Mitt.” From that, I can assume that either he agrees with that cause (and therefore is against Mitt Romney) or he simply wants to follow the updates of that page (Facebook likes don’t necessarily denote support).

Either way, it’s possible that he’s taking a position, and therefore his position must be protected by the first amendment.

Claiming that “like” is not tantamount to “speech” is a pretty hard position to take. If my friend put that exact phrase on a bumper sticker or printed it out on a t-shirt and wore it around, it’s unlikely that anyone would fail to identify that as speech.

Do you think “liking” something on Facebook should be protected free speech? If not, why not? What do you think is the difference between a “like” and other forms of protected speech? Let us know in the comments.

Facebook 1st Amendment

[via GigaOm]

  • http://www.malapascua-island.com Mike

    The LIKE Button would only be an act of protected free speech if there would be also an UNLIKE Button, of if one has the chance to REMOVE his LIKE.

    • http://www.webpronews.com/author/josh-wolford Josh Wolford

      Facebook does allow users to unlike posts, comments, and pages that they have liked.

    • http://storiestrendingnow.blogspot.com/ Stories Trending Now

      I quite agree with you, An unlike button should also be created to make it all balance.

  • http://www.floraqueen.com Paolo

    I fully agree with the previous comment, if a “like” is an act of free speech, the I would also like to express when I “dislike” something. Anyway I think they’ll go for that option sooner or later.

  • delainfan

    No it shouldn’t. Unless they’ve redefined the word, clicking a button isn’t “speech” It’s an opinion. Was his action wildly inappropriate? Yes. (Especially if done on a work computer) Should this guy have been fired? I don’t think so no, although he had created an unpleasant working environment by his actions. How would his employer know he could trust him? Also, he apparently CHOSE to give his employer access to his FB page or didn’t secure it which makes this his own fault.

    • techyjt

      So you think you should be criminally/personally(such as a lawsuit) held responsible for a button click but not for giving you opinion to about something that may be inappropriate to someone else? Say you said “I don’t like PRESIDENT and I think he should loose his job”, that would be free speech, but if you clicked LIKE on a presidential opponents page that stated the same thing, you should be sued for defamation?

  • http://www.myalmanac.blog.ca Rudy Hiebert

    The way I see it, “like” is the same as a personal preference or opinion, especially of nothing is said, negative or positive. Some people get too hung up on just letting people live their life and not take everything so serious.

  • http://www.ssrichardmontgomery.com ron

    When you like something you are agreeing with it in the same way as you had said I agree with what you are saying. So I agree with face book that a like is free speech and should be protected as such.

  • http://www.strategicrevenue.com John Colascione

    I do not see how it makes much sence to penalize someone in their professional work based on a personal opinion unless it directly effects how they conduct their performance and responsibilities. To loose your career due to something you thought, something you liked or disliked or something you mearly clicked on seems to go too far.

  • http://www.guisemarketing.com Roberta Guise

    Now that the court has said it’s not free speech, I think the HR experts need to come in and use HR law to determine whether there was just cause for firing. Under employment law, is openly voting to have a different boss cause for dismissal?

    The other aspect of this, is that you’re not going to look good if you brazenly and openly show that you don’t support your boss. In the private sector, that boss would likely aim to get you transferred.

  • techyjt

    I believe that a LIKE or a TWEET or a PUSH etc. should be protected a FREE SPEECH. As a reply to another stated that said it shouldn’t be because it is a “click” vs. a voiced opinion? I am not clear where a difference is made, they are both just a personal choice.

  • Nancy Heltman

    Sadly not really a Facebook issue. In Virginia Sherriff elections firing folks who supported your opponent is common practice. My brother in law list his job for the same thing. Sad but true.

  • Yasmin Khan

    It is definitely Free Speech! Free speech is being eroded slowly but surely in our everyday lives and we must be very careful of what we ban. We have the choice of clicking on these buttons or of responding to articles which is part of the free speech that we in the West have fought for in several wars. This employee should NOT have lost his job for giving his opinion, his boss may not like it but it is definitely NOT a reason to fire him.

  • http://www.ulc.net Become a minister online

    Of course it is free speech. I don’t see how it is even an issue. Since when have “statements” been required in order to qualify as free speech? Artistic endeavors have long been protected. People in Portland are permitted to run around naked as long as they do so as a protest. I don’t even see how it is not considered a statement to indicate that you like something. Sounds to me like the judge is as corrupt as the Sheriff. Where is the ACLU on this?

  • CyberWarPOW

    I say the like button has caused many pain for people, it should be removed altogether.
    If you read Carl Sagan’s “A Demon Haunted World”, its thinks like the invisible like button
    that would eventually lead humanity towards the path of darkness, simply because it isn’t real.
    Since when does my value as a human gets reduced to how many likes I have. Especially now when you can purchase likes. I am in the movie business and I already see people missing opportunities because they like or don’t like something. It’s just another thing the corporations invented to drive humanity apart.

  • Kat

    I think it should never have come down to free speech- the Boss over-reacted- Clicking LIKE on page does not mean you support the opponent- often you cannot even see a page unless you click the button- perhaps he was merely checking out the opposition- maybe he went to post pro Boss or slam the opponent? in any case I agree with John and Roberta- firing someone who’s disagrees with you is not fair and not a valid reason to lose one’s job.In fact the BOSS needs to be dunned for doing it.

  • Steven D

    The guy was an idiot. One lesson I learned early on in the work place, was a simple fact. You can get rid of anyone, you only can get in trouble when you give a reason. Understanding that fact, your totally arrogant to do what he did. I have no pity on him at all.

    • Mike M

      Which guy are you talking about, the idiot who fired a guy for a “Like”, or the idiot who clicked the “Like”?

  • http://www.waentertainment.com michael

    Telling your boss that your competitor has a great web site would be one thing but to click the like button was very poor judgement, fired???? reprimanded most definitely.I beleive clicking the like button is a form of free speech,but,Have some loyalty for who you work for or find a new employer.

  • Rod

    For goodness sake, its only facebook, the guy has a right to like or not like anything he likes (so long as it isn’t line dancing or incest). It’s a free country. It’s the same as opponents shaking hands and/or kissing after a game. You can admire your opponents qualities without necessarily following them. Companies are just getting too fragile if they feel that they have to sack someone for liking someone else (In fact there should be a law against it). I like Angelina Jolie, is my wife going to divorce me because of it? No she is not, because she knows where my loyalties lie. Companies/Organizations need to grow up and take it on the chin. It should never have got as far as the court.

  • http://Mabuzi.com Kevin

    Facebook is walking a very tricky path between Free speech and privacy. Once you Like you are then targeted for marketing, whether you Like it or not.

    “A LANDMARK ruling that Facebook is an advertising medium – and not just a way to communicate – will force companies to vet comments posted by the public to ensure they are not sexist, racist or factually inaccurate.

    In a move that could change the nature of the social networking site forever, companies could be fined or publicly shamed for the comments that appear on their Facebook ”brand” pages.” SMH

    I see big trouble brewing for the company that sells you every Like.

  • http://www.boholwebdesign.com Bohol Web Design

    Solve the problem with 1 click….the “Close My Facebook Account Button” if having a Facebook account could end your career then just think about simply closing your account, if you have a job you want to keep. If its come down to this i would rather simply close my account..Like millions have done already..its just not worth it.

  • Ken Busch

    Anytime an employer can use such an excuse to fire you, it should be protected. In fact, that should be an illegal action for any employer. Are you kidding? I cannot ask a prospective employee his age, but this action was legal? Sure! I get notices from FindLaw.com so should know what the appeal says as soon as it hits. I think this first court really missed it. There is absolutely no reason I should not be able to support anyone I want to in an election, no matter who I work for. My right to free speech is especially important when if comes to political opinion in an election, no matter where I work!

    • Glenda Graham

      I totally agree with you.

  • http://www.wix.com/polalor/republic Peter O’Lalor, Ph.D.

    Comments to lengthy for this format. Please “Like” or comment on Facebook if you are interested in “Free speech.” Thank you.
    Peter J. O’Lalor, Ph.D.

  • Jerry

    This could open up an interesting can of worms. Sign language is protected as free speech. An eye gaze communication board is considered free speech. Some disabled people can only communicate by clicking on a computer. There are many ways to communicate – clicking a mouse to facilitate communicating “I like this” is not in any way different from the previously mentioned methods of communication.

  • http://buy-facebook-likes.net/ Adam

    I agreed that it’s not really speech as isn’t a bumper sticker or printed T-shirt. A Facebook like is just like the icon itself a “thumbs up” and that’s not speech now is it?

  • KarenNewell

    Yes, a “Like” button is definitely free speech. And yes, you can get fired for exercising your right to free speech. Free speech means that you can’t be arrested or imprisoned for disagreeing with the government – it doesn’t mean you can’t be fired for what you say. I can say, “I hate the company I work for” which would definitely get ME fired, though I couldn’t be arrested for it. Of course, this was a government employee stating a political opinion which definitely opens a different can of worms than just free speech. They BOTH were on a slippery slope. I don’t think it is too smart to use Facebook to dis your boss whether it’s free speech or not. But then the judges ruling that the “like” button isn’t a statement is also ludicrous. The final consensus will probably be that ALL THREE were wrong.

  • Somebody’s Opinion

    If a deaf and mute person clicked on the like button on Facebook, wouldn’t that constitute free speech. Of course it would. If you click on a button that says like, then you are stating out loud that you like something. That is, you are expressing yourself through a click of your finger that you support that page you are liking.

    If you get rid of free speech with the net, you might as well become deaf and mute thereafter.

    It means your ideas do not count, nor are they protected.

    I think it is horrible that this person got fired for just feeling something, or for liking another opponent rather then his superior. It should be the right of anyone to feel as they would, especially about a political situation. What if the person didn’t click the like button but still voted for the other guy and their superior found out, I bet they would still get fired but the difference is you would have to mind read and prove what was in the head of their superior during the act of firing, their superior could come up with any excuse they like to cover it, but the two involved would know the truth. There is not much protection these days about Free Speech.

  • banfacebook

    It is clear that the people of America have already taken the whole idea of “Freedom Of Speech” and what it actually represents, WAY OUT OF CONTEXT! It is unclear if this is conducive of the increase in an ignorant/narcissistic population and/or the loss of what it means to act with integrity??? Regardless, the the true meaning of “freedoom of speech” has been lost. Hence, networks such as Facebook (which was once a network designed for University/post-graduate level networking) have become a complete JOKE! not to mention infested with low-fuctioning idiots looking for a “soap box” to stand on, thinking people actually care about what they have to say LOL! Thank goodness Linkedin has stepped in to give the professional world a place to network.

  • Simon

    “Free speech” has never meant that you can say any-thing you like with-out there being consequences.

    One can be taken to court, and sued for what one says. Many of ones choices have consequences, even ones “free speech”.