Is Liking Something On Facebook An Act Of Free Speech?

    May 19, 2013
    Chris Crum
    Comments are off for this post.

Last year, a Virginia judge ruled that a Facebook “like” is not protected by the First Amendment. The story goes like this: Deputy Sheriff Daniel Ray Carter of Hampton, Virginia “liked” the page of “Jim Adams for Hampton Sheriff.” Carter’s boss, Sheriff B.J. Roberts, saw this, and then when Roberts won the election against Adams, Carter was fired. Carter claimed it was the Facebook “like” that led to his termination. He sued, but the judge determined that a “like” is not protected free speech.

Should a Facebook “like” be considered free speech, and protected under the First Amendment? Let us know what you think in the comments.

Carter appealed the decision, and Facebook stepped in to argue that a like is free speech in the same way that a political bumper sticker is. Facebook filed a brief in Carter’s defense, saying, “When a Facebook User Likes a Page on Facebook, she engages in speech protected by the First Amendment.”

“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,” the company continued. “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,” Facebook continued. “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.”

The debate certainly has large ramifications for not only practices on Facebook, but on the Internet at large, which as we all know, has become very, very social.

This week, a panel of three judges in Richmond, Virginia heard the case, and Facebook once again stepped up to defend Carter, though really it’s a defense of Facebook users in general. It can’t be good for Facebook if people start becoming afraid of what they can or cannot say on Facebook. Some people have even talked about leaving the social network because they don’t allow pictures of breasts. More censorship can’t be good for user growth.

According to a report from Bloomberg’s Tom Schoenberg, Facebook lawyer Aaron Panner told the judges, “Any suggestion that such communication has less than full constitutional protection would result in chilling the very valued means for communication the Internet has made possible.”

The company was reportedly given three minutes of argument time, and the judges refrained from asking Facebook any questions. The report also shares some quotes about Facebook “likes” from Robers’ lawyer:

“It’s like opening a door into a room,” Rosen, of Pender & Coward PC in Virginia Beach, Virginia, said. “You can’t see what’s in there until you click on the button. That’s not speech.”

“Facebook has 3 billion ‘like’ clicks a day,” he said. “Is each one of those speech? I don’t think so.”

As far as Facebook and many others are concerned, yes, each one of those is free speech.

At the same time, Roberts is claiming that the Facebook activity is not even the reason Carter (along with other employees) was fired, and that performance was the real reason. Still, the subject of the Facebook “like” remains the hot button issue, and has been argued throughout the case.

What do you think? Should a Facebook “like” be considered free speech, or do you not consider a “like” to be an act of speech at all? Let us know what you think in the comments.

  • https://www.searchen.com John Colascione

    This is an interesting situation as it can be both good and bad to identify a like to actual speech. If a like is identified as speech and a user likes something, then they can also be held responsible for anything they like. What if a user likes something negative? Something that violates someones right or suggests discrimination or even hate? Will it be the voice of the original poster of the material or the voice of the one who likes the item, or both. Who is held responsible for such speech? What if a user likes something but they did not realize that an image suggested something contrary to what they story was really about, once thoroughly read into. Or an accidental click (like). A very controversial concept indeed.

    • http://violin-lessons-by-courtney-morgan.yolasite.com/ Courtney

      I agree with the risks identified by John Colascione and would like to add one more. It is conceivable that someone would intentionally “like” something they do not actually like. One reason for doing this would be in order to follow the topic and receive notifications of page updates. Another would be to receive some sort of benefit for doing so. Some companies offer coupons and other promotional items for clicking “Like” on certain pages. A third reason might be curiosity. Some pages cannot be read unless you first click the “Like” button. In light of these risks, I do not believe Facebook’s bumper sticker analogy is appropriate. No one puts bumpers stickers for politicians or causes they do not support on their vehicle, and they certainly would not do so accidentally. The deputy might have had a better argument if he had offered reprisal rather than free speech as a defense.

    • http:www.normascorner.com Charlie

      You can unclick a like button you clicked on.

  • http://www.ssrichardmontgomery.com ron

    Like should be considered free speech for the simple reason that if you say you like something that you do not have to give a reason you just do. Might also be a good idea to have a (real) facebook dislike button for the same reason to enhance fee speech.

    • http://violin-lessons-by-courtney-morgan.yolasite.com/ Courtney

      I don’t have to justify the color of shirt I wear today, but that does not make it speech, especially if said shirt is of a solid color with no logos or slogans. It is expression, since my color and style choice says something about me. However, what I am trying to express is clear only to me. Wearing a green shirt is not the same as saying, “I like the color green.” The green shirt I am wearing happens to be a college t-shirt that I bought out of desperation one day because I was wearing long sleeves and the temperature suddenly rose twenty-five degrees. It therefore says nothing about me except that I was on that college campus and needed a shirt. This one happened to be on sale. I do like green, and I did attend that school, but neither are the reason for buying or wearing the shirt, and I am the only person who knows those facts for certain.

      See my reply to John Colascione for an argument as to why the meaning of clicking “Like” is as equally unclear as my reason for wearing this shirt.

      Now, if someone were to discriminate against me for wearing the shirt, I would have a choice as to how to defend myself. I could say that it is speech, which it would now be or at least represent since I am now making it that, or I could cite my reason for owning the shirt which would effectively prove, at least in my case, that it is not speech.

      We have this thing in the good old U.S. of A called judicial review. That means that once a judge rules something is protected under the Constitution, the ruling encompasses other cases and sets a precedent that becomes law without new laws actually being written. These laws are binding, even for legislators, and can only be overturned by the Supreme Court or by a new Constitutional amendment. The fact that the deputy’s case was taken to district court and made into an issue of free speech rather than discrimination or wrongful termination based on reprisal presents a dilemma for the state of Virginia because calling it free speech means people can no longer argue that it is not should they need to do so for the reasons mentioned by John Colascione above. The limit to protected free speech is hate speech and crying “wolf” (or yelling “fire” if you prefer that analogy), both of which can be prosecuted.

      • http:www.normascorner.com Charlie

        Facebook is a similarity of a t-shirt color. You don’t have to go there if you don’t like it. the same as you don’t have to wear a green t-shirt if you don’t like the color green. Going to Facebook is your option of free choice. The like button is the logo on a t-shirt. You wouldn’t wear a logo declaring you support the 2nd ammendment if you didn’t think people should have guns. You do not have to click a like button if you do not like what the like button is on. You are declaring to people that visit Facebook that you like the subject the button is on. The 1st Ammendment is about having the right to state that you like something whether it is on the internet or on a street corner.

  • http:www.debeersandassociates.co.za Andre J de Beer (lawyer RSA)

    I think, with respect that “like” is not an encouragement but,only a personal opinion

  • http://oven-cleaning-london.co.uk/bbq-cleaning/ David

    I think that the like is NOT an act of free speech. A free speech can be something you’ve thought about, something you’ve considered. Most of the time a “like: is nothing more than a smile, a sympathy. In order for something to be free speech it should express something which “like” most of the time does not do. Free speech means position. So, the like is not a free speech if it does not express a personal position based on consideration.

  • Jim Hall

    If a like is not free speech then the word NO cannot be considered a statement of free speech and therefor it has no power or meaning.

  • http://romancestory.org mike uchebuaku

    Like is free speech because it is a free expression of opinion summarized in one word. The user has time to think before clicking the like button, so it is a free and fast form of expressing opinion about something.

    • http://violin-lessons-by-courtney-morgan.yolasite.com/ Courtney

      Expression should not be considered “speech” because the meaning is unclear and therefore widely open to interpretation. See my comments above for further explanation. Perhaps there is an argument in there for a new amendment that protects expression as if it were speech, and there are plenty of legal precedents that would support such an amendment. As a violinist, I strongly support free expression and consider it to be a basic human right whether or not it is protected by law. However, we cannot blindly make clicking a button free speech because doing so could have unintended consequences in the future. When ruling that something is Constitutionally protected, a judge must try to consider the implications of doing so beyond the case at hand. And no, the user does not always have, or may choose not to take, time to consider clicking “Like.” It can happen accidentally, and the only person who knows whether or not it was an accident is the person who clicks it, assuming they even remember doing so. I clean my FB profile every few weeks, and it is amazing how much I don’t remember clicking.

  • Bob Ward

    IMO, a “Like” is free speech. It is a direct commentary on the topic being discussed. Since the SCOTUS has determined that the act of giving money to a political campaign is free speech, it seems that the act of clicking the “Like” symbol should be afforded similar consideration.

  • Larry

    When I click Like on FB I am expressing my opinion, just as I am expressing my opinion when I state it verbally. They are both expressions of free speech.

  • http://www.cafepress.com/naumaddicarts Richard Barnes

    Yes, of course the “like” is free speech. It is the communication of an opinion – no matter how simple the medium of communication or how small the message. A “like” isn’t a simple instruction, i.e., take me here, take me there, give me this, give me that, do this, do that. It says, hey, I like what I’m seeing here and I’m making my opinion known to whoever happens to be paying attention. The simple act of walking into a booth and pulling a lever and walking away to elect a president is as simple a communication as a like. I don’t think anyone will argue the vote is free speech. Why is the like questioned? The payment for a Pepsi out of a vending machine versus a Coke is also a vote for Pepsi over Coca-Cola. Is that choice protected? Will anyone argue there is no opinion expressed in that act? Should such choices be opinion to all sorts of interference from others? That would surely spell the death of capitalism and free enterprise, right?

    • http://www.cafepress.com/naumaddicarts Richard Barnes

      Just to correct the typo, the point above was to say – I don’t think anyone is going to argue the vote for a president ISN’T protected free speech. One’s choice of religion – and one’s personal choices in much else besides – is also protected. There’s a very good reason those two – religion and speech – are included in the very first amendment. There are many things that reasonably qualify as “speech” … unless, of course, you are of an uncharitable character.

  • Mare

    To me a like is free speech. It is expressing an opinion just as writing this article is considered free speech. Though a like is not verbally expressing an opinion to some, it is agreeing with the poster and therefore indicating that the person that has liked it is of the same opinion.

  • michael

    Even if a like is free speach (and I think it is). Free speech does not mean there are no concequenses to that free speec you have the right under the constitution to call him an ass. He also has the right to fire you. Free speech does not mean free speech without consequenses just free from government retribution

    • James

      Michael, in this case, it is government retribution, or at the very least, it may be.

  • Rich Imus

    In the words of Jesus, “let your yes be yes and your no be no.” The like button on facebook means “yes…I kike this.” It lets others know that you like something. It’s called COMMUNICATION. Isn’t communication covered under the rights of free speech?

  • Yasmin Khan

    Of course ‘like’ is free speech. This is ridiculous, if it’s not classed as free speech then what is? Our free speech has already been very badly eroded by other trying to change the freedom of the West, what next?

  • http:butterflystorms.bog.com RC

    Of course is free speech.

    It’s exactly the same as anyone at a rally or a meeting saying, “I like that”.

    There is no difference.

    However, I do condemn Facebook for taking a simple like and spreading the ‘liked object’ of text and/or images all over the pages of the person who liked the article or whatever. This takes a simple like and expands it beyond what most of us would want. It is Facebook that exaggerates a simple ‘like’.

  • http://Www.hopefirstgroup.com Nicholas

    With Facebook, you like; with linkedin you connect, with twitter you follow and with google+ you join groups. It will be interesting to see how all of these develop in the future. I see the need for concern and security…but pretty soon the loss of privacy can be justified for the need to protect the group. I think violations of many of the rights are more damaging in nations like yours where you believe so deeply in the law and in the constitution.

  • JR

    Yes, a Facebook “like” should be considered free speech. By “liking” a comment or article, it is implied that you are essentially agreeing with what is written, or a view expressed, so it is like paraphrasing the one who composed the article, blog etc….only instead of doing it verbally, you’re doing it electronically by clicking the “like” button.

    For example, if a reporter shoved a mic in your face and asked you your opinion of the subject matter which you liked, and weren’t worried for various reasons of expressing your view openly, you would, maybe not verbatim, express your view vocally in a similar fashion to what was written in that article. After all, that’s why you liked it in the first place…because it expresses what your thinking.

  • http://www.outletspanish.es/ Isabel

    Since everyone has a right to speak his mind, freedom of expression ends when not respected the other person.

  • Js

    Of course it’s free speech! Whenever and however you let your thoughts be known that is by definition “speech”. A “like” is just one way to express your thoughts or agreement with something.

  • http://aspiritualparadigm.com Connie

    When we click like, and share on our own pages, it should be a matter of Free speech. Who made a rule that one word or three makes a speech?

    I have yet to find such a rule. The court is out of line, interfering again with our constitutional rights.

  • http://www.Self-to-self.comandFacebookpageMysticalVerses... Ruth Cunningham

    Within the same frame as the maxim “actions speak louder than words” I find it difficult to argue that the act of clicking “Like” on Face Book is not the choice to communicate a clear intention. Does the written word, or a telephone conversation, an email, or any “action” that is intended to convey a personally chosen position/belief/view, not an intentional communication of a persons freedom-to-choose? Is verbal speech the only intentional communication that is “implied and commonly assumed” under the term of “Free Speech”? Music, Art, and an infinity of actions carry (or manifest, actualize, create)specific as well as assumptive “intention” within them, as “reasonable expectation” of their meaning, as general communication. If the legalese is so ambiguous then perhaps there needs be a rewritten, clarified, standard judgement. I believe, that Laws, like Beliefs and Language, are living reflections of human evolvement, and by virtue of human experience they need to be constantly challenged and revised/modified to keep up with real-life change via our Human Nature of constant learning, growth.

    Ruth Cunningham

  • terry hagen

    free speech pure and simple

  • Jan Depwe

    Definitely, free speech! One is expressing an opinion.

  • http://facebook,com/DealChalet William

    In short, yes, it is free speech. The action of “Like” implies approval.

    What may be lost in the story is that the Deputy Sherrif is a public employee, and the Hatch Act forbids public servants from campaigning on behalf of a specific candidate. Since the “Like” was for a specific candidate, this can be considered a campaign statement.

    The lawyers on both sides seem to want to have their cake and eat it too. If not free speech, then not in violation of Hatch and he should not have lost his job. If it is free speech, then it is in violation of Hatch and it should have been removed prior to the election (as soon as his boss noticed it). By allowing it to stay up after acknowledging it, his boss condoned the illegal speech and should be liable as well.

  • http://www.onlinetv.com Randy Penn

    While I agree with William that Hatch is the catch there has been some actions that show the rulers have made “words will never hurt you” into a crime. I have first hand knowledge of two young girls, 15 and 16 who, in separate instance, were arrested (you know – handcuffed, finger printed, the works) for posting on facebook threats (“I wish she were dead” in one case). Words are crimes now.

    Today Twitter turned in 25 people trying to meet up to buy marijuana. Nobody asked them to, they just did it.

    Your mobil phone not only tracks all your texts and voice – it tracks where you have been and where you are, even if you turn it off. If you are logged into facebook or twitter on that phone they get that information too. All of it is copied to the government computers to be sifted with keywords and cryptographic logarithms. All of this is kept forever so far.

  • http://www.mindmagic123.com Holistic Hypnosis & Hypnotherapy – Los Angeles.


    In my opinion, of course it is free speech. Speech is an expression of a persons opinions/views. A “like” is an abbreviated electronic
    expression of an opinion. Quantity, “billions” does not alter this basic nature. If the Whitehouse put a proposal on their website with “like” and “dislike” buttons as a referendom, it is clear that the answers would be political free speech, and they might well influence government policy in either direction.

    Holistic Hypnosis & Hypnotherapy Los Angeles

  • Dr Jim Gladden

    It appears to me that this “good ol’ boy South’n” judge’s ruling (against the junior law enforcement officer) is just another example of “politics as usual”. Unfortunately. Makes me wonder what type of “payment(s)” that judge received for his ruling (i.e., from that Sheriff B.J. Roberts). I happen to feel that “Liking” and/or “Unliking” on Facebook should be considered free speech, and therefore protected under the First Amendment of the U.S. Constitution.

  • Gee

    Look, we hear this sort of thing all the time. It’s a great point though Chris. Another storm in a tea cup much like Panda and Gibbon, but free speech is a democratic right and this won’t affect affiliates, so keep pumping out those sites guys.

  • http://bossy-girls.net/ Lila Sovietskaya

    A like in Facebook is free speech. It is a statement of liking something done electronically, therefore it should be protected as free speech. However, Facebook, YouTube and many other sites and institution are in a censorship crusade against anything ‘Adult’ This decision limits freedom of speech. Unfortunately it denies it in a legal manner. Facebook, YouTube and others though open to the public, are not public sites. They are private corporate sites free to restrict whatever seems immoral to them. After ‘Adult’ sites there is discrimination for “Religion’ then discrimination on ‘Ideology’ the on sexual preferences and so on. The First Amendment is becoming a worthless.

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  • http://www.osint.ca Len

    Of course a “like” s/ not be held against anyone.. I do wish Facebook had a “dont like” option as well :)

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  • John

    A “Like” has got to be free speech. It can be nothing else. As a protest to the moronic judge (that’s free speech)one should go round liking EVERYTHING. Especially conflicting materials. That will give the idiot “Like” police a headache.

  • http://monnerat.blogspot.com/2010/01/notre-voilier-ete-vole.html?showComment=1265165716517 website

    all the time i used to read smaller posts which as well clear their motive, and that is also happening with this paragraph which I am reading at this time.

  • Nobodymuch

    YES.. It should be totally protected, why is it that Facebook has so much power and why are people on there, it does nothing much for anyone. To Lila, I’m pretty sure Facebook does not care much about whether a person is moral or not. After all they never help folks that are stalked on there, and there is no live person to talk to. If moral is measured by collecting personal data on every soul possible then I would say Facebook are the most immoral of them all. Free speech whether written, spoken, or implied by action of thought expressed should always be considered Free Speech, this includes Facebook. Especially Facebook. People who are on there are really crazy to be participating in that site. Its useless, does nothing at all for anyone. Does not help writers, or businesses and just collects your private conversations, pictures, thoughts with your personal family and friends. Its basically a BIG psychological profiling. What is wrong with people!! they should read, its out there, the truth about this, but folks are too busy not believing such a thing could be true. Everyone should dumb Facebook, they should never ever ever been given this much power, and it is most of all the people that gave them it. Give and inch they will take 50,000 miles. Its not like folks have things to hide, its about choosing who you are intimate with, and Facebook gets into some very personal and intimate details that are frankly NONE of their business.

  • http:www.normascorner.com Charlie

    Clicking a like button is the same as declating you like an article or person in a room of people.If the judges decide it is not free speech then neither are words spoken on a conference telephone connection. A like button is not a door you have to open to see what is on the other side. A like button is the same a a sign or pin you wear declaring your preference to a person, article or activity.

  • http://www.emmaseverything.com Sonya Kerr

    A “Like” is free speech. Last year, there were a couple of firemen in this state who were fired from their job because they each had expressed their concern–to their families and friends on Facebook–that the department might not have handled a recent situation in the best manner, in their opinion. They were not ugly or disrespectful to their department, simply that they might have handled that particular situation a little better…but the department became aware of the comments and fired them. I see Facebook as this: it is your social “home”…your “living room”, if you will. You might consider that you have VIRTUALLY invited people into your living room for a chat. Whether others like what you are discussing or not is irrelevant. Your opinions and expressions in your Facebook account are being expressed in the community of your personal circle of family and friends. It’s your right. To have anyone infringe upon that right is infringing on your right to free speech. To “like” a page is to express your personal opinion on a subject matter and you should have every right to do so without repurcussion. This is your living room. It’s your home. It’s your family and friends. Anyone who “catches wind” of your opinions and expressions have no right to infringe upon your right to express your political, social, religious or personal views. Period.

  • sidupac

    I think that a Like is expressing opinion and could be determined as free speech, but since some Likes are not opinion and are merely a technique of revealing more information that is hidden away then this could void free speech. If the profile is public and critical information can be seen when you like it then it is more free speech than anything else.
    Only problem is what if it wasn’t you that actually clicked the like?

  • HMK

    I avoid the ‘like’ button, mainly because of the perception of ‘like’ and what other people read into ‘liking’.
    ‘Like’ does not mean support, endorse, respect, etc, but others view it in this way. I like some people, but do not support their opinions or actions, however, if I was to ‘like’ them on Facebook people might perceive that I did support them.
    People also change their Facebook pages, so indicating you ‘like’ someone can become outdated as the the person you ‘liked’ may later add something you would wish not to be associated with.

  • John Hartley

    Yes, I believe that a Facebook “Like” should be protected as free speech. The court contends that it is insufficient speech to merit constitutional protection’ because it does not “involve actual statements”. However, one does not actually create the content of a political bumper sticker or yard sign even though the display of these items is considered protected free speech and is clearly understood by society at large to be an endorsement of candidates and their political views. This is no different.

  • http://www.kampoeng.us Kampoeng

    WOW amazing … like this 😛

  • Jim Honey

    Selecting the “Like” button is expressing an opinion. Everyone is entitled to their own “opinion”. That IS free speech.

  • http://www.graciousstore.com Gracious Store

    Facebook like is a form of free speech. People should be able to express their approval or otherwise of anythink using the facebook “like” without fear of repercussion of what/whom they like or not

  • http://calgarycarpets.net Calgary Carpets and flooring

    I don’t see how it could be anything else than free speech. However, if you’re working as an employee you probably shouldn’t denounce your boss on Facebook. He/she might find another reason to fire you.

  • http://joehenning.net Joe Henning

    I have funny enough always thought of it as speech and saves me the time to write something like… “Thanks, this is great”. Just a click to say ‘Like” makes that communication happen the same..

  • testo

    faceb is i bllsht it is a close platform the the idiots!

  • mark


  • http://www.opace.co.uk Opace

    Some good discussion here! :)