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.