Thursday, September 19, 2013

Facebook "Likes" Ruled to be Constitutionally Protected Free Speech

Yesterday, the U.S. Court of Appeals in Richmond, Virginia issued its decision regarding First Amendment protection of Facebook “likes” of candidates’ Facebook pages.  In ruling that liking these Facebook pages is protected by the First Amendment, the Court held found that these likes are “the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

The case emanated from an issue regarding employees of a sheriff’s office who were terminated for supporting their supervisor’s opponents.  The support in issue was evidenced by these employees endorsing their supervisor’s opponent’s Facebook page.  One of the employees also chose to post pictures of the opposing candidate on his own Facebook page.

At issue was not merely the speech of the terminated employees, but the fact that their support was evidenced by simply clicking an icon and not necessarily their traditionally defined speech.  Previously, two Federal Courts had held that actual statements posted on a page are protected by the First Amendment.  It was not until this most recent ruling that the use of the “like” button was considered to be protected speech.

U.S. Circuit Judge William Traxler stated that, “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement”. He continued by saying that, “the meaning that the user approves of the candidacy whose page is being liked is unmistakable”.

“Liking” something on Facebook is widely known to be an expression of support for the original post or page that the person “likes”.  While it is certainly not “speech” in the traditional sense, so much can now be expressed with one click of the mouse.  While commenting on a page or post further espouses one’s opinion, many people choose to express their support not in words but in a more simple way that Facebook allows.  To not protect these “likes” while extending First Amendment protection to actual comments is unequal and unjust, and the U.S. Court of Appeals (in this author’s opinion) has made the correct decision in treating the two methods of support equally.

More information can be found by reading this Bloomberg article.

More information on the case can be found by reading the U.S. Court of Appeals for the Fourth Circuit appellate decision; the case is Bland v. Roberts, 12-1671.

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