Are Facebook 'Likes' Protected By The First Amendment?
from the they-should-be,-but... dept
Venkat Balasubramani's assessment of the ruling is so good that I'm going to repeat it here:
As Eric Goldman notes later on that same page:
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.
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.