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:


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), 2 May 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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