Are Facebook 'Likes' Protected By The First Amendment?

from the they-should-be,-but... dept

There are lots of details in this case that aren't worth getting into, but in a dispute over a firing of some employees for the local sheriff, after they "liked" the Facebook profile of someone running for election against their boss, a court appears to have declared that Facebook "likes" don't get First Amendment protection. It feels like the court was more focused on reaching the result it wanted, rather than thinking through the implications of its own ruling.

Venkat Balasubramani's assessment of the ruling is so good that I'm going to repeat it here:

Gak!

The court’s conclusion on qualified immunity may or may not be defensible, but the court veered off course in concluding that a Facebook like is not speech. Maybe the court slept through Arab Spring and the many other instances of online activism in the past five years. Maybe the court is unaware of the robust body of First Amendment precedent which says that protection for expression is not limited to just actual words. Hello, Tinker (black arm bands) and Texas v. Johnson (flag burning)! More likely, as Eric notes in his comments below, the practical implications of a "like" threw the court for a loop.

It’s easy to dismiss Facebook "likes" as one of those mindless knee-jerk online activities we all routinely engage in that have little or no societal value. Courts can discount Facebook friendships in other contexts (see, e.g., Quickly v. Karkus, discussed here: “It’s Officially Legal: Facebook Friends Don’t Count”), but it’s well off the mark to say in this case that "likes" were not speech for First Amendment purposes. As menial as a Facebook like may be in the overall scheme of life, it’s an announcement to your Facebook friends that you support something, whether it’s a cause, a candidate, a company, or another person. A like also promotes a particular page or newsfeed to your friends, which sounds like quintessential expressive activity. [See Eric's comments below for various potential implications of a Facebook like.]

While I remain leery of Facebook's "like" ecosystem, I "dislike" this ruling.

As Eric Goldman notes later on that same page:
Listing a person's name as an "endorser" of a political candidate is core First Amendment activity. That's exactly what the "likes" did here.
Perhaps it's just a simple way of "dismissing" a Facebook "like" as being something inconsequential. Many "likes" are, indeed, inconsequential, but not all of them are. And, there's nothing in the First Amendment that says that inconsequential expressions of opinion are somehow less protected (or not protected at all). Who knows if this ruling will be challenged, but it's difficult to see how it would survive higher level scrutiny.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Chris ODonnell (profile), Apr 30th, 2012 @ 11:40am

    I "liked" the post. I also +1 it.

     

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  2.  
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    fogbugzd (profile), Apr 30th, 2012 @ 11:44am

    Too many judges and politicians see the world through Luddite-colored glasses.

     

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  3.  
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    Anonymous Coward, Apr 30th, 2012 @ 11:46am

    If you are paid to like something, then it is speech, because money is speech. /sarcasm

     

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  4.  
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    Josef Anvil (profile), Apr 30th, 2012 @ 11:52am

    just DUH

    I really wonder why courts (and regular people) have so much trouble understanding that just because communication is done online, it's still communication.

    Add online or cyber to something or do something on a computer and suddenly it becomes incomprehensible "magic".

     

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  5.  
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    Designerfx (profile), Apr 30th, 2012 @ 11:59am

    Re:

    we create them this way. What's the ages of our supreme court justices or district courts, etc?

    Society has created some kind of "old = wiser" concept which is from the 1900s or earlier which doesn't reflect that wisdom and age are simply not correlated anymore, when it comes to technology.

    It's not that old people can't get technology, it's that a majority of them simply choose not to.

     

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  6.  
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    Elder-Geek, Apr 30th, 2012 @ 12:14pm

    Really

    The Sheriff is an elected position. Protected speech or not. The Sheriff goes out and see an "elect this other guy, not my boss" button, bumper sticker, or Facebook like. What do you think he would do????

    They very subtly said "someone else can do a better job than my boss...and I wish they would." Also as members of the Sheriff department and likely considered experts by the general public about how well the Sheriff department is run. With a vote of "No Confidence" like that, the Sheriff decided at budget cut time to eliminate those people.

    With human nature being what it is, is it ANY surprise this happened? Generally speaking, I try not to say "My boss sucks and I wish someone else had his job." No matter how sure I am my boss won't find out.

     

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  7.  
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    Anonymous Coward, Apr 30th, 2012 @ 12:21pm

    Re: Really

    This all may be true and fine, but why did the judge have to make the statement that its not protected speech? All of the other example you gave are protected speech. The question before the court was, could protected speech be used as grounds to fire this guy. The judge took it on himself to dodge the issue and just say that this type of speech is not protected, so there is not issue.

     

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  8.  
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    Anonymous Coward, Apr 30th, 2012 @ 12:22pm

    If a like in inconsequential why did they get fired over it?

     

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  9.  
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    Eponymous Coward, Apr 30th, 2012 @ 12:26pm

    I fail to see how something can be " inconsequential" when the consequence of it is you loose your job...

     

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  10.  
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    A Guy (profile), Apr 30th, 2012 @ 12:27pm

    Appeal

    This will get over turned on appeal, if they appeal. Political speech is the most protected speech under the first amendment.

     

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  11.  
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    Elder-Geek, Apr 30th, 2012 @ 12:34pm

    Re:

    Good question.

    Did the Sheriff know about the Facebook likes. Or did the Sheriff lay off the least productive employees with negative attitudes?

    It is always possible that they kind of attitude that says "Please lay me off" is also the kind of attitude that does not like how things are going at work, thus also the kind of person who would like someone else as Sheriff.

    They may not have been fired for it. They have offered no proof more than saying something like "10 employees were laid off and 8 of them liked someone on Facebook who was running for Sheriff...coidience...I think not!"

     

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  12.  
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    Anonymous Coward, Apr 30th, 2012 @ 12:34pm

    The court's analysis seems pretty thin, and I'm surprised the judge didn't see the message being expressed by the conduct: If someone "likes" a post, they're indicating that they like the message in the post. The judge said he didn't want to guess at what the message was. I don't see how there's any doubt.

     

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  13.  
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    Anonymous Coward, Apr 30th, 2012 @ 1:18pm

    Malcontents who lost their jobs during budget cuts nothing to see here.
    Sheriff Roberts is entitled to qualified immunity and has the right to structure his department as he sees fit.

    This is the same reason a marine recently lost his job.

     

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  14.  
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    Anonymous Coward, Apr 30th, 2012 @ 1:43pm

    Re:

    Did you actually read...anything?

    "Perhaps, as Venkat indicates, we might otherwise excuse Roberts' firings through qualified immunity, or in fact maybe the budget cutting wasn't pretextual, but the judge's techno-confusion prevented it from reaching those questions squarely."

     

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  15.  
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    Anonymous Coward, Apr 30th, 2012 @ 1:51pm

    Re: Re:

    Actually, they never were

     

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  16.  
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    Anonymous Coward, Apr 30th, 2012 @ 1:54pm

    Re:

    Qualified immunity is correct, unless of course he (or someone working for him) said why they were fired. The moment you admit that they were fired for expressing a political opinion, the sheriff has crossed the line and has relieved himself of the immunity.

     

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  17.  
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    jackn2, Apr 30th, 2012 @ 2:41pm

    Can we get the candidate he liked? Ill put a like out there for the guy.

     

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  18.  
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    chelleliberty (profile), Apr 30th, 2012 @ 5:24pm

    Duh

    So, let me get this straight, according to this court:

    Indicating your support of a candidate by clicking "like" on the candidate's Facebook page: not protected speech--you can be legally fired from a public position by the candidate's opponent for doing it.

    Indicating your support of a candidate by posting "I like this guy." on the candidate's Facebook page: protected speech--you can *not* be legally fired from a public position by the candidate's opponent for doing it.

    Wow, where do I get whatever this judge is smokin'?

     

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  19.  
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    chelleliberty (profile), Apr 30th, 2012 @ 6:40pm

    Actually...

    Well, I don't think the record from the embedded ruling is complete enough to know all the facts for sure, and I haven't read anything else about the case, but, quoting from the ruling:

    "It is clear, based on the Sheriff's own admissions, that at some point he became aware of [two of the plantiffs'] presence on [the other candidate's] Facebook page."

    So, the Sheriff at least knew they were on the page, and I think it seems reasonable to believe (but is not a certainty) that he would have, therefore, also known they liked the page.

    ...and...

    "The Sheriff also declined to retain the remaining four deputy Plaintiffs and five other deputies for unsatisfactory performance or for his belief that their actions 'hindered the harmony and efficiency of the Office.'"

    And so, while, again, this doesn't give 100% certainty as to the Sheriff's particular reasoning about any individual, saying the dismissed employees actions hindered the "harmony" of the office seems to suggest that, more than likely, he was basically saying that supporting that other guy was causing disharmony. (It's not clear from that paragraph whether "their actions" referred to liking/being on the opponent's Facebook page.)

    So, I suppose it's possible that they were just slackers or troublemakers, and that's why; but it seems at least reasonably likely from the ruling that there was good evidence for supposing that the actions were indeed related to the dismissed employees liking the other guy's Facebook page.

    But, definitely: reading the ruling shows that there was far more in evidence than simply saying "10 employees were laid off and 8 of them liked someone on Facebook [etc.]".

     

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  20.  
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    Anonymous Coward, Apr 30th, 2012 @ 11:37pm

    Re:

    That marine didn't lose his job for saying he would vote for the other guy. He lost his job because he said he would refuse an order. There's a difference.

     

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  21.  
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    Anonymous Coward, May 2nd, 2012 @ 9:18pm

    Re: Re:

    that is the same difference

     

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  22.  
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    Anonymous Coward, May 2nd, 2012 @ 9:36pm

    Re: Re:

    no he didnt, read it, he does have the abiltiy to demand his deputies be loyal to him in certain cases, and to fire them for being disloyal, he does have that right, in certain cases, but I guess it was too much to read

     

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  23.  
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    Anonymous Coward, May 2nd, 2012 @ 9:46pm

    Re: Duh

    no, your reading it wrong, or perhaps you didn't read it at all, there are tests, legal ones to validate the claim of violation, they didn't pass the tests

    some of them posted things on adams page, not all, just some, but deleted them, the court cannot know what was there, for the complaint of free speech, in this case, simply clicking the like button, as some claimed to do, is not enough to support the claim they were fired for it and it violated thier free speech

    one guy only had a bumper sticker, and not everyone knew he had it, there was no conspiracy on the sherrifs part, there was no judge dismissing facebook likes as not being speech

    some of the deputies, due to the specific jobs they held, had the legal responsibility to be loyal to the sherrif at all times while employed by him, the judge even pointed this out, they failed at that

     

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  24.  
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    chelleliberty (profile), May 2nd, 2012 @ 11:41pm

    Double Duh

    ROFL! Okay...

    Yeah, I read it; did you read it? Or read my post at all? Or are you just being reactionary and *having* to disagree? Ohh, or maybe you're smokin' somethin'! I mean, either you didn't read carefully, or your comprehension is, well, shall we say... a bit on the weak side.

    Perhaps it's partly your misunderstanding about Facebook likes, do you actually use Facebook? "As some claimed to do" is just you scraping to make a point, but, sorry, Facebook likes are not anonymous, and there was no disagreement in the case about whether 'Like' was pressed: the judgement specifically says "the only evidence regarding Carter's activity on Adams' Facebook page is that he 'Liked' Adams' page." So, duh.

    And the rest of your post is mostly irrelevant, and shows that even RE: my post, you had very poor comprehension... which is lame, seeing as how my post, compared to a legal ruling, was about as hard to understand as "See Jane Run". I simply referred to the judge ruling that clicking "Like" was not protected speech, not the ultimate ruling, not the bumper sticker, not the getting fired, etc.

    And, besides, you're either wrong or being intentionally misleading about that, as well. You try to make it that the judge ruled that it didn't rise to the level of supporting the claim of being fired because of it.

    But that's not true, the judge never ruled on that because he said "It is the Court's conclusion that merely 'liking' a Facebook page is insufficient speech to merit constitutional protection." and therefore he never even had to take it that far. Duh duh.

    You ACs are really falling down on the job.

    A very poor effort.
    Grade: D minus

    P.S. I understand that you probably just wanted to look all smart and feel like you really shot someone down so you can feel better about yourself hunny, but seriously, you oughtta stick to arguing about whether bringing back Pandas was just a lame ripoff, or a legitimate use of previous content Y'know, things where there's no actual right or wrong answer.

     

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  25.  
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    Anonymous Coward, May 7th, 2012 @ 10:14pm

    Re: Double Duh

    they claim of clicking like didn't rise to the level of free speech needed to claim they lost thier jobs over it, and not all of them had clcked like, only some did

    he did rule on it, deciding that merely clicking like in this case did not live up the the legal standard of free speech violation in this case, have someone explain all the big words to you

    they claimed to be fired for liking the other guy, and in firing them, violating their free speech rights, which it didn't, get it yet??

     

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  26.  
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    chelleliberty (profile), Jun 26th, 2012 @ 7:57pm

    Re: Re: Double Duh

    I realize it's far too long gone at this point, but

    "they claimed" blah blah blah "which it didn't, get it yet??"

    And my post was not about any of that, simply about the judge's ruling that "liking" a post publically could not even *ever* rise to the point of protected speech, PERIOD, regardless of whether one was fired for it. get it yet?!

    I'll quote one more time just for the record. The judge said in his ruling: "It is the Court's conclusion that merely 'liking' a Facebook page is insufficient speech to merit constitutional protection." Not that it was insufficient in this case, but that it is insufficient, period.

    And if you had been able to comprehend the court documents you would realize that this particular ruling was what enabled the judge to dismiss the case without even considering whether the guy was fired for it since the like was not considered by him to be protected speech at all.

    Last word to you, if you want it, and since I've explained it so clearly in both of my replies (and quoted the relevant text both times now) I will simply move on, since your inability to understand such simple reasoning indicates that you are either trolling me, or you are so far beyond help that I'm not going to be able to help you figure out this one.

    Oh and I've had to revise your grade:

    Grade: F for having eliminated the merest shred of benefit of the doubt which I was still able to extend to you.

     

    reply to this | link to this | view in thread ]


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