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.


Reader Comments (rss)

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  1. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Sep 19th, 2013 @ 12:58pm

    EVER the corporatist, Mike has to slip in a poison pill:

    "(First Amendment protections are from government activities, not from what a private employer does concerning its employees ..." -- That's just wrong to assert especially when unnecessary, and I believe it shows how Mike is ALWAYS first concerned with corporations and compelled to assert that corporations have privileges that even gov't doesn't!

    Under common law, a corporation better have a clear case to suppress someone's speech. Must be directly work-related.

    Free speech must be a fairly absolute right that a mere legal fiction can't unduly influence. Otherwise what we'll get is "privatized" oppression instead of gov't oppression. That's no longer a theoretical concern now that corporations use computers to monitor one's activities whether on work premises or elsewhere.

    Tell ya what, Mike: just clarify that you meant under certain specific and limited conditions, not that corporations have a right to snoop on non-work areas and threaten employees with firing if they don't like your political views.

     

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    allengarvin (profile), Sep 19th, 2013 @ 1:06pm

    What if you like fire in a crowded theater?

     

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  3.  
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    silverscarcat (profile), Sep 19th, 2013 @ 1:11pm

    Re:

    So long as you don't like the stampede that follows...

     

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  4.  
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    S. T. Stone, Sep 19th, 2013 @ 1:11pm

    Re: EVER the corporatist, Mike has to slip in a poison pill:

    Under common law, a corporation better have a clear case to suppress someone's speech.

    Like copyright.

     

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  5.  
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    Shadow Dragon (profile), Sep 19th, 2013 @ 1:16pm

    Re: EVER the corporatist, Mike has to slip in a poison pill:

    Translation; I'm just another lonely guy with nothing better to with his time. I'm so desperate for attention that getting a rise out of you is barely suffice.

     

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  6.  
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    James Burkhardt (profile), Sep 19th, 2013 @ 2:02pm

    Re: EVER the corporatist, Mike has to slip in a poison pill:

    The fun part of right to work and at will employment laws is they mean it is legal for a private employer to fire you for anything.

    The problem is, when that employer is also the government, concerns about censorship become far more weighty. Because once they start firing people over speech, people get really worried the the FBCIATFTSPD (aka some sort of government police, FBI/CIA/ATF/TSA/PD) will start harassing them, shooting their dog and then themselves.

    Corporations don't have private armies that can shoot you, with little note, for being 'belligerent'. And google, while possibly spying on me (and you've shown no evidence that they are actively attempting to profile me), also doesn't have a history of silencing people who argue that google is bad. I have known a few people who think google is 'too big', and used gmail to tell me about it. Who use android. And yet...no oppression.

    Moreover, the 1st Amendment is not a law, its a right dictating what the government can or can't control. The rule is that amendments don't generate civil torts (the things you sue over). Thats why, despite the 14th amendment providing 'equal protection under the law' to all people, we require a host of anti-discrimination law. Because the 14th amendment did not extend to private citizenry.

    Telling a corporation you can't fire someone who says X has two negative consequences: It abridges the right of free speech of the manager and owners who define the corporate image, and gives bad employees a way to prevent their firing. THe government also faces this problem, but we accept that in the public sector because of the enhanced scrutiny on the guys with the $50,000 cruise missles.

    The public sector (aka government employment) has a set of rules that semi-clearly defines the bounderies of government and employer, to allow for resolutions of debates over firing. We had an article in the beginning of the month about it. No private emploer, from the mom and pop shop to Walmart, has to retain your however. If they don't like that you do Rocky Horror at midnight once a month, you can be fired. Doesn't matter why. You will likely get unemployment, cause its not 'with cause'. But you don't get to keep your job.

     

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    PRMan, Sep 19th, 2013 @ 2:09pm

    But...

    But apparently passing out the Constitution at Modesto College is not. Got it.

     

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    John Fenderson (profile), Sep 19th, 2013 @ 2:21pm

    Re: Re: EVER the corporatist, Mike has to slip in a poison pill:

    Corporations don't have private armies that can shoot you, with little note, for being 'belligerent'.


    Most don't. But many actually do.

     

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  9.  
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    James Burkhardt (profile), Sep 19th, 2013 @ 3:04pm

    Re: Re: Re: EVER the corporatist, Mike has to slip in a poison pill:

    While true that some have private security, and often they are vigorously protected, the kinds of companies OOTB and the NSA like to talk about spying on us tend not to. Moreover, fewer of them (id say none, legally, outside of government contractors who haven't delivered finished weapons yet, and again they aren't the ones were are talking about here) have the button for things like cruise missles. And a lot of the private security debacles are getting more and more scrutiny. So I think the intent of my statements, that we have a reason to more strongly fear a government that has failed to draw the line between employer and government, then from a corporation acting solely as your employer.

     

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    PopeRatzo (profile), Sep 19th, 2013 @ 3:48pm

    Re: Re: Re: Re: EVER the corporatist, Mike has to slip in a poison pill:

    At least you have a say in government. You have no say over what a corporation does. Especially since more and more corporations have now separated themselves from their customers.

    For example, there are private corporations that ARE private armies. That's what they do. And some of those companies are involved in spying on us. If you don't like what Haliburton or Pfizer or Exxon, or Academi (previously "Xe", previously "Blackwater") is doing, how are you going to affect their behavior? You're not their customer.

    But you always have, potentially, a way to influence the government's behavior. It's hard, but possible. For some of the worst corporate actors, you can only stand by and watch (or not, since they tend to work in secret).

     

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  11.  
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    Anonymous Coward, Sep 19th, 2013 @ 4:50pm

    Re: EVER the corporatist, Mike has to slip in a poison pill:

    You don't know what common law is. You don't know what free speech is. I'm not sure you know what anything is.

     

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  12.  
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    Cygnismedia, Sep 19th, 2013 @ 9:45pm

    If you’re not going to write anything, at least have the decency to let your email link directly to the real story, instead of inserting this useless click bait in the middle before we can actually read what this story is about.

     

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    Ninja (profile), Sep 20th, 2013 @ 5:06am

    In an ideal world where humans aren't as fallible, corrupt and greedy as they tend to be, an employee that liked a page criticizing a company for something that's being done wrong would not be fired. The company would take such indications to improve and stop the wrongdoing in the event they discovered it. Because they would not be spying on the employee in the first place.

    Utopia.

     

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  14.  
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    Altaree, Sep 20th, 2013 @ 6:10am

    They keep missing that "like" doesn't have to imply approval.

    When you "like" something on facebook it is the equivalent of following that group. You are really saying that you wish to have posts from that group added to your daily feed. I have liked political candidates that I dislike just so that I can keep up with the effluent that spews from their mind.

     

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  15.  
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    John Fenderson (profile), Sep 20th, 2013 @ 9:52am

    Re: Re: Re: Re: Re: EVER the corporatist, Mike has to slip in a poison pill:

    At least you have a say in government. You have no say over what a corporation does.


    Careful, there. I've been making this exact argument for a long time, but certain dishonest minds will twist it around and accuse you of being in favor of Big Government!

     

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