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), 26 Jun 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.

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