Are Facebook ‘Likes’ Free Speech?

The ACLU and Facebook itself are working to overturn a judge's ruling that clicking a Facebook 'Like' button doesn't count as Constitutionally protected speech.

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Duncan Chard / Bloomberg

Journalists sit in front of an illuminated "like" logo from the Facebook Inc. social network website during a news conference.

The first amendment protects political speech, but does is protect a political click?

The American Civil Liberties Union filed an amicus brief this week supporting the effort to overturn a January ruling against Hampton, Va. deputy sheriff Daniel Ray Carter, who sued after claiming he was fired for “liking” the Facebook page of his boss’ political opponent during the town’s 2009 sheriff election.

According to Carter’s lawsuit, Hampton Sheriff B.J. Roberts told Carter, “You made your bed, now you’re going to lie in it—after the election you’re gone.” About five months after Roberts was re-elected, Carter and five other employees who supported his opponent or did not actively campaign for Roberts were fired.

But earlier this year U.S. District Court Judge Raymond A. Jackson tossed out the suit, ruling that the Constitution of the United States does not protect clicking the thumbs-up button on a Facebook page; the “like” button, Jackson argued, is not substantial enough of a statement to be free speech. “Merely ‘liking’ on a Facebook page is insufficient speech to merit constitutional protection,” he wrote. Around 3 billion “likes” and comments are made on Facebook every day.

(MORE: Should Pumping at Work Get You Fired? ACLU Says No.)

An appeal by Carter and his former coworkers is currently being reviewed by the U.S. Court of Appeals for the 4th circuit.  Prompted by concerns that the ruling could set a precedent for all mouse-click actions, the ACLU filed a brief which — they hope — will demonstrate the power of the single click: they cited re-tweeting, signing a petition, and donating to a campaign online as examples. None of these forms of communication will be protected as free speech if the appeals court rules against Carter. “Pressing a ‘like’ button is analogous to other forms of speech, such as putting a button on your shirt with a candidate’s name on it,” Rebecca K. Glenberg, the legal director of the ACLU of Virginia, told the Washington Post. He argues that as the technological world grows we must protect new ways of communication.

(MORE: Can Interviewers Insist on ‘Shoulder Surfing’ Your Facebook Page?)

Facebook itself has also joined the fray, coming out against the lower court’s decision with a legal brief of its own.  In it, the social network argues that liking something on Facebook is “the 21st century equivalent of a front-yard campaign sign.”

MORE: What You Need To Know About the Latest Twitter Privacy Ruling

12 comments
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Roshni Gupta

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Lou Lohman
Lou Lohman

Facebook (the self-important social media site which is nothing more than a popular way to spread memes and pictures of babies) needs to die in a fire.  End of story.

P.S.  On topic, "Liking" something is not speech.  Moving one's finger a fraction of an inch cannot be protected under the same rule which protects actual communication (since the First Amendment protects text as well as speech; also, one might argue that typing is "moving one's finger a fraction of an inch", but it happens several hundred/thousand times - see: last paragraph).   What if the original entry is edited after I Like it?  And actual speech is something which people can be held accountable for.  I'm sorry,  but holding someone accountable for something they Like on Facebook is *ridiculous*.

Protecting Facebook Likes under the First Amendment would be equivalent to protecting a laugh. As I said: ridiculous.

Erik B. Anderson
Erik B. Anderson

This is so incredibly dumb. I sometimes "like" politicians that I don't support on Facebook because I just want to see their updates. 

How many of the million plus fans that "Like" Sarah Palin actually support her? I doubt that many. We just want to see what dumb stuff she is up to.

I'm thinking of "liking" the Sheriff Carter's page too, now.

He's not wearing a political button on his uniform while he's working. It's the equivalent of wearing a political button on his private time.

Neslihan Kurosawa
Neslihan Kurosawa

Hi there,

In the world of politics generally it seems to be all about having the right connections and mingling with "who is who".  I totally believe that you can not have free speech when you are dedicated to political party or happen to be an employee in a government department.  This could spell the actual beginning of a lot of law suits, to defend all those so called victims who simply chose to like someone on Facebook! 

 I would say with all honesty that we should all stick to what we know and are familiar with.  Try to get our message across from an objective point of view and not being subjective.  And hope and pray that you will not be taken to court over such ridiculous incidences such as this.  Kind regards.

sscarzz
sscarzz

Tacos Loco's time.......

Talendria
Talendria

I can somewhat understand the judge's perspective.  When you express yourself with a mere click, it's very easy to be misunderstood.  Back when I used to use Facebook, I occasionally mis-clicked and accidentally liked or disliked something.  Last month there was a Congresswoman who accidentally voted down a bill that she was advocating because she got confused and pressed the wrong button.  Historically, free speech has constituted an articulated thought or the expression of a position through purposeful action, not the twitch of a finger.  The digital age presents some unique legal and philosophical challenges.

SmallSpeakHouse
SmallSpeakHouse

Does this judge have a facebook page? He obviously doesn't know what a like button is for (or is choosing to look away). Besides, if a like button is inconsequential, then these people where fired for doing something inconsequential, which boggles my mind.

Ray
Ray

It's obviously speech.  It's literally saying "I'm in favor of that."  It doesn't get any more speech than that.  What this judge is saying would mean that if the government passed a law tomorrow saying that you cannot "like" the facebook page of any incumbent's election opponent, that would be perfectly legal (government employees have almost the same speech protections as member of the general public). 

I can't imagine that anyone who went to law school can believe what this judge claims to believe.  Makes you wonder if maybe he's connected to the sheriff somehow.

SmallSpeakHouse
SmallSpeakHouse

Ah but the people who sued reiterated their opinion by confirming why they clicked on like. That to me is a clear statement.

SmallSpeakHouse
SmallSpeakHouse

lol, alright you have a point. But seriously though, I would not want to get fired just because I clicked on like.