New technology often raises difficult constitutional questions. New forms of communication inevitably raise the issue of whether that communication is protected speech (as in, speech protected by the First Amendment). Sometimes, this question is easy. A status on Facebook or a tweet likely receives constitutional protection because they (usually) express ideas and beliefs. The “likes” on Facebook (where a person clicks a button to register their approval of a particular status, item, movie, etc.) represent a tougher question.
The Fourth District Court recently held that Facebook likes represent protected speech under the First Amendment, available here. The plaintiffs in this case were employees of a sheriff’s office in Hampton, Virginia who supported the sheriff’s opponent during the sheriff’s re-election campaign. Two of these employees liked the opponent’s Facebook page, which the sheriff argued was not protected speech (and thus result in a dismissal). There were a number of other activities that the group of plaintiffs engaged in to support the sheriff’s opponent (to the point that one wonders what kind of boss he was), but the plaintiffs could only demonstrate the sheriff’s actual knowledge of the Facebook likes.
The court’s logic for such a decision is rather straightforward: clicking the like button on a politician or their campaign’s page signals an individual’s approval for politician and agreement with that politician’s views. While this is a rather minimal form of expression, it still represents political expression. While there is a long-standing debate over what actual speech is protected and what is not (such as defamation or “fighting words”, scholars and judges universally state that the Constitution protects political speech. The Court went so far as analogizing the like in this case to placing a sign on one’s lawn (which the Supreme Court specifically stated is protected speech).
Practically, this does not mean much for most people. The First Amendment (as well as most of the rest of the Constitution) only applies to the government. Private sector workers can’t claim a First Amendment defense if they get fired for liking a group or status mocking their boss (not without some statute saying otherwise). Still, it is nice to get a ruling defining Facebook likes as protected speech. More importantly, having a form of electronic communication as simple as a Facebook like deemed protected speech opens up the door to a number of other, similar social media activities. Courts can apply the Fourth Circuit’s logic regarding Facebook likes to, say, retweeting other people’s tweets on Twitter (say that three times fast…) or sharing statuses on Facebook. The ruling also keeps the door open to other future forms of digital expression that, like Facebook likes, might not constitute “speech” in the conventional sense.
And on that note, have a wonderful Friday. I’ll see you all next Wednesday.