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What Did You Mean by Clicking “Like”? Judge Rules Facebook “Like” Button Isn’t Protected Speech

Facebook is all over the headlines this month, but in the shadows of the social network’s IPO, there was a darker story: A federal judge has determined that clicking Facebook’s Like button does not constitute protected speech. 

“It is the Court’s conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” writes Judge Raymond A. Jackson of the U.S. District Court for the Eastern District of Virginia.  

“Where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record,” he adds, meaning someone left a message on a Facebook wall. 

The case involves six employees of the Hampton, Va., sheriff’s office, who claimed they were fired for endorsing a rival candidate of their boss, Sheriff B.J. Roberts, during his 2009 re-election campaign. A summary judgment for the sheriff was granted in Bland v. Roberts in January 2012; the judge’s rationale was released late last month.

While the plaintiffs contend that Roberts “violated their First Amendment rights to freedom of speech when he fired them,” the judge ruled that simply clicking the Like button on an opposing candidate’s Facebook page is not a “clear” or “meaningful way” of speaking out and doesn’t merit First Amendment protections.

The New York Times notes that Jackson’s ruling wanders into “a murky legal area” – one that pits traditional forms of protected speech against the tools used for expression by social channels, the written word versus symbolic speech.

Yet, as Karen List, director of the Journalism program at the University of Massachusetts at Amherst, observes “the courts have clearly protected symbolic speech in the past, including flag burning, certain types of cross burning and obscene anti-war statements on jackets. Compared to those types of speech, hitting a Like button is very tame, as are many of the other visual expressions of opinion on social media.”

“I believe they should be protected as such,” says List, who teaches media history, law and ethics. “In addition, many scholars believe the First Amendment privileges political speech – so, symbolic speech that is political in nature, like flag burning or ‘liking’ a political candidate – should most definitely be protected.”

Perhaps the most chilling aspect of the ruling for social media users is that Judge Jackson studied relevant legal precedents, but found this particular act lacking. His decision turns on the absence of “substantive” and “meaningful” expression in clicking the Like button. 

There are any number of social platforms that replace written interaction with visual or symbolic engagement, such as sharing photos via Instagram or “pinning” on Pinterest. In the rapidly evolving social media universe, it seems technology may have outpaced the judicial system’s ability to understand – or even recognize – how expression happens out there.

List offers this perspective: “Legal analysts at the time television was introduced said that courts wouldn’t know what to do with it because the founding fathers never could have envisioned it. If they thought that was true of television, it’s exponentially more true of the internet and social media.”

“Many judges, including the Supreme Court justices, are not comfortable with cameras in their own courtrooms to this day,” she continues. “And yet now they have to deal with cell phones, laptops and Twitter. They don’t understand these tools of expression in their courtrooms, and they don’t understand how they’re used generally. Judges today are faced with applying current legal precedents to new mediums, and in part because they don’t understand them, I think they often rule more conservatively than they otherwise might.”

“It will take a long time for the law to catch up – if it ever does,” List says. 

What are your thoughts about the Bland v. Roberts decision? Do you think it will have implications for Facebook and social media channels?


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