Is 'Liking' on Facebook Protected Speech?

Venkat Balasubramani and Eric Goldman, over on Eric's blog, have highlighted a rather interesting if fundamentally flawed decision from the Eastern District of Virginia. 

The case is Bland v. Roberts, and involves six plaintiffs who were civilian employees of the defendant, a sheriff in Hampton, Virginia.  Apparently the plaintiffs were in favor of someone new sitting in the sheriff's seat, and when the election came around, they expressed public support for the sheriff's opponent through a variety of means including "liking" the opponent's Facebook page.  Unfortunately for the employees, the sheriff won reelection, and soon after he fired the six of them.

What's interesting about the case, and what caught Venkat and Eric's eyes, is that in granting summary judgment for the defendant sheriff, the court ruled that "liking" something on Facebook is not constitutionally protected speech.  

Let me repeat that to drive the point home.  The court ruled that clicking Facebook's "Like" button – which thereby expresses one's opinion to at least one's friends if not the whole world – is, as Judge Raymond Jackson writes, "insufficient speech to merit constitutional protection."

I'm sure Judge Jackson is a wise man, but I think he whiffed on this one.  

Judge Jackson writes that "in cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record" – i.e. people wrote something on Facebook too. The judge goes on to cite a pair of cases involving firing of employees in response to Facebook comments, and writes:

These illustrative cases differ markedly from the case at hand in one crucial way: Both . . . involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of [the plaintiff]'s posts from one click of a button on [the] Facebook page [of the sheriff's opponent].

But Judge Jackson leaves out a rather important piece of information about the current situation: There are no cases involving the consitutional protections for "likes," "pokes," "+1's," or any of those other one-click denotations of approval.  As Eric points out, "a Westlaw ALLCASES search for "facebook /s poke" yields no results...yet." I wasn't able to find any cases involving Facebook "likes" on Lexis either.  All this makes the issue smell like an issue of first impression.

And if it really is an issue of first impression (or even just effectively so - some other trial court may have weighed in, but clearly higher courts have not), then Judge Jackson is punting on the hard questions. By his logic, one could have concluded that websites aren't publications because they are not books or newspapers, or that cars are not vehicles because they are not bicycles or horse-drawn carriages.  

I suspect that Judge Jackson is getting lost in the formalities of the act of "liking," rather than the substance thereof; after all, he writes that he won't try to infer "from one click of a button." I take that to mean that the judge isn't willing to hang constitutional protections from a single, atomic (in the classic, indivisible sense) action.  I suspect that he'd be much more willing to do so if, instead of "liking," the plaintiff typed "I like the sheriff's opponent" on the Facebook page – it involves more steps, more time, and is thus more reliable as a formal expression of the plaintiff's "like" of the sheriff's opponent.

But looking at formalities is the wrong way to think about "liking." After all, modern technology is all about reducing complex tasks to simple acts – to dismiss the simple as unconvincing is to dismiss the end towards which all technology moves.

Better instead to look at whether the message behind the act is one deserving of constitutional protection.  In this case, surely the "one-click" act is equivalent to the text "I like ____."  Is that statement of opinion protected?  Surely it is.  If the typed text and the single click convey the same message, then how can they earn different levels of constitutional protection?

Consider signing an online petition or wearing a black armband: Both acts are very simple, amounting to typing a couple words or putting on a piece of cloth respectively.  But each represent a more complex message, be it endorsement of potentially pages of carefully reasoned argument or expression of a heartfelt loss.  Surely no one would challenge the expressiveness of the acts due solely to the ease with which the expressor can communicate their message.

Another important thing to note: Facebook's business model, and that of many publications, relies on "liking" as substantive expression. For Facebook, that click of a "like" button means publication of that "like" to tens, if not hundreds or thousands, of "friends" of that clicker.  It also means publication of that "like" on the clicker's personal page – which could be seen by tens, hundreds, thousands more.  Further, it means a positive return for an advertiser when a user "likes" their product, as it will result in the product appearing on new pages.  And it drives traffic to the "liked" page – a hugely critical fact in the online media's click-reliant business model.

Admittedly, this fact is of little legal consequence, but surely it shows that "liking" is not just "one click."   If it were, and were not substantive expression, surely so much money would not hinge on such a small act.

I'll be curious to see whether the plaintiffs appeal the summary judgment order.  There are a lot of other moving parts to the decision, such that this one little piece about "likes" may get lost in the shuffle.  But I certainly hope the judge's hyper-formalism gets overruled.  That kind of approach is anathema to the progress of science and technology, and does no one any good.

Arthur is the research attorney and editor for the Digital Media Law Project at the Berkman Center and a correspondent for The Christian Science Monitor.  He tweets occasionally at @NominallyBright.

(Image courtesy of Flickr user toodlepip licensed under a CC BY-NC 2.0 license.)


Subject Area: