Washington United for Marriage, The Seattle Aquarium, Jon Stewart, napping. Every company, movement, politician, and mundane activity has a Facebook page. These pages are “liked” by thousands of people (napping currently has 120,756 “likes”). With the click of a button, you express interest.
But is clicking “like” or “favoriting” a tweet the same as stating an opinion? And does the conduct deserve First Amendment protection? Facebook argues that liking a politician’s Facebook page is the digital equivalent to sticking a campaign sign in your front yard. Your friends see the action and it is listed on your profile in the “Likes” section. In addition, Facebook’s default settings list the pages you “like” as public information. Unless you change this setting, anyone, friend or not, can search for you, and see that you “Like” YES on Washington’s Marijuana Initiative, King County Young Republicans, The Seattle Seahawks, House Democrats, or Justin Beiber. By clicking, you express support for these things: you show, “I like this.”
Others argue a “like” on Facebook is not protected “speech” under the First Amendment. They argue that it is not an expression of opinion, and Facebook should not be considered a public space with free speech rights. It is not just about opinion; it is also about interest. People “like” Facebook pages for news updates or to receive coupons for various products.
A federal court in Virginia will soon decide if liking something on Facebook deserves free speech protection.
Daniel Ray Carter Jr., a deputy sheriff in Hampton, Virginia, was fired from his job after “liking” the Facebook page for his boss’s political opponent. Carter, and five others who were allegedly fired for supporting the opponent, filed suit in Virginia District Court for wrongful termination and violation of free speech rights. But U.S. District Court Judge Raymond A. Jackson ruled against Carter and the others, citing that free speech protections are not upheld when someone doesn’t actually say something.
In his May ruling, Judge Jackson wrote, “Liking a Facebook page is insufficient speech to merit constitutional protection, because it doesn’t involve actual statements.” Liking a Facebook page or post is not expression, while writing a Facebook post is.
Carter and the other five plaintiffs filed an appeal in the Fourth Circuit Court of Appeals in Virginia. The ACLU and Facebook have filed briefs in the case, supporting the push for First Amendment protections.
A section of Facebook’s brief reads, “If Carter had stood on a street corner and announced, ‘I like Jim Adams for Hampton Sheriff,’ there would be no dispute that his statement was constitutionally protected speech.” The ACLU continues this argument of support by writing, “With one click of a button, an Internet user can upload or view a video, donate money to a campaign, forward an email, sign a petition, send a pre-written letter to a politician, or do a myriad of other indisputably expressive activities.”
For most of us, social media is now an extension of our daily lives. We share photos, thoughts, music, movie trailers, and opinions. But whether or not our “likes” are actual statements of support and opinion is still a digital and legal gray area. While telling the Facebook world you like to nap may not be a politically game-changing comment, the courts will ultimately decide whether you are legally protected to make that opinion known.
The circuit court will hear the appeal this fall. The decision could be a landmark one for future social media expression issues and digital First Amendment rights. In the meantime, Facebook just hit one billion users. That is one billion people clicking “like.”
The Washington Young Lawyers Committee (WYLC) is the vehicle for new attorneys and law students to get involved with the Washington State Bar Association.
One thought on “Click “Like””
To some extent, this entire issue is screwed up by Facebook’s misuse of the word “like”. To “like” a post can be different than to “like” another FB user’s page.Often people “like” a page not to express an emotional state with respect to that page’s owner, but merely to keep track of what the owner is doing on FB. For example, I “like’d” Mitt Romney’s page not because I have a positive emotion about him, but because I wanted to see and comment on his postings. This practice is more akin to Association (also protected under the 1st Amendment) rather than speech.
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