Yes, A Facebook 'Like' Is Protected By The First Amendment
from the free-speech-ftw dept
Last year we wrote about a troubling case, in which a district court ruled that Facebook “likes” were not protected speech under the First Amendment. The full details of the case are fairly complex, but the short version is that some employees of a local sheriff were fired after Facebook “liking” the sheriff’s opponent in an upcoming election. The employees appealed. Both Facebook and the ACLU weighed in, urging the appeals court to reverse… and it has now done so in clear and concise language, noting that of course “liking” something on Facebook is a form of expression:
Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. 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. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.
Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. The distribution of the universally understood “thumbs up” symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy.
Of course, this doesn’t mean you can’t be fired for liking something (First Amendment protections are from government activities, not from what a private employer does concerning its employees — though for government employees it can protect them). However, having a clear ruling that a “like” is a form of protected expression will likely come in handy in other cases in which others try to claim that certain forms of online expression are not protected.