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Does the 1st Amendment cover clicking 'like' on Facebook?

May 05, 2012|By Michelle Maltais
  • Although clicking the "like" button on Facebook, as this sticker on the front door of Facebook headquarters invites you to do, seems a clear way to indicate an opinion about something, a federal judge says that doesn't mean clicking it is constitutionally protected speech.
Although clicking the "like" button on Facebook, as this sticker… (Paul Sakuma / Associated…)

Before you click that "like" button in Facebook, you should know that a judge in federal court asserted that this is not protected under the 1st Amendment.

In what boils down to a wrongful termination case (Bland vs. Roberts) brought before the U.S. District Court for the Eastern District of Virginia, four former employees of a sheriff up for reelection claimed that they were fired after, among other things, he discovered that they "liked" his opponent's campaign page on Facebook.

"According to the Plaintiffs, after learning of their support of their opponent, the Sheriff called a meeting in which he informed his employees that they should get on the 'long train' with him rather than riding the 'short train' with his opponent," according to court documents.

Judge Raymond A. Jackson dismissed the case for various reasons detailed in the ruling. But the line of logic that could have broader implications is this: "Simply liking a Facebook page is insufficient" to warrant 1st Amendment protection. "It is not the kind of substantive statement that has previously warranted constitutional protection."

In citing other cases of protected speech on Facebook in his decision, the judge notes that, unlike the simple act of clicking "like," actual statements were made.

"The key question is, is the act of 'liking' something of Facebook, does that express an opinion or thought," said Aden Fine, senior staff attorney for the American Civil Liberties Union in an interview with The Times. "It certainly does. The mere fact that you're pressing a button to express that view or opinion instead of saying those words doesn't make a difference."

Helen A.S. Popkin of MSNBC's Technolog wrote that Jeff Hermes, director of the Digital Media Law Project, Berkman Center for Internet & Society, told her, "The judge was essentially devaluing the 'like' as speech because of how simple it is to do."

How much thought does go into clicking that button? Is there a standard of quantity -- or quality, for that matter -- of thought for any kind of expression to earn protection?

Think for a minute about how much thought you put into the things you say or do. Would everything you consider protected self-expression rise above the act of clicking "like" on Facebook?

The fact that clicking "like" doesn't always warrant a ponderous pause or that no actual words were conveyed shouldn't matter, according to law experts and legal precendents.

"The courts have made clear that the 1st Amendment doesn't just protect words," Fine told The Times.

Consider the case of Tinker vs. Des Moines Independent Community School District 1969. The U.S. Supreme Court ruled that three public school students who were suspended for wearing black armbands to school to protest the Vietnam War were exercising their constitutional right to free expression. 

As we wade into this still-nascent and ever-evolving world of human expression and communication, these kinds of issues of protection and privacy continue to surface.

While we won't argue the merits of the case that inspired this discussion, the issue is more than an interesting bit of conversation.

"The legal issue is important as new technologies emerge," Fine told The Times. "The 1st Amendment protections equally apply to new forms of speaking."

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