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.

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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.

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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.”

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