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.

Filed Under: arab spring, first amendment, social media
Companies: facebook


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  1. icon
    chelleliberty (profile), 30 Apr 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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