Should Facebook Likes Be Protected As Free Speech?

    August 10, 2012
    Josh Wolford

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]