Like This Article at Your Own Risk: District Court Rules that Facebook Likes Don't Count as Protected Speech

By Elspeth Crawford

It’s happened to all of us. You’re tooling around the internet, checking your mail or reading the news, and you see something, a picture or an article or a Panini recipe or whatever, that piques your interest. Hovering near the item is a tiny blue button labeled ‘Like,’ and by clicking it you announce to 200 or more of your closest Facebook friends that you do, indeed, Like it. This happens every minute of every day, and a federal court in Virginia doesn’t think it counts as protected speech under the First Amendment of the United States Constitution.

The case in question, Bland v. Roberts, was brought by a group of employees contesting their termination from the staff of Sheriff B.J. Roberts. Roberts claimed that he fired the employees due to poor performance and because their actions "hindered the harmony and efficiency of the office." One of the employees, Daniel Ray Carter, claims he was fired because he ‘Liked’ the Facebook page of Jim Adams, Robert’s political opponent.

Generally, the First Amendment forbids public employers from firing public employees merely because the employees exercised their rights to free speech. The judicial process for determining whether protection applies is a long one. The court has to decide things like whether the employee spoke about a matter of public concern, whether the employee’s interest in making the statement outweighed any opposing governmental interest, and whether the speech was a substantial factor in the termination. In the Bland case, U.S. District Judge Raymond Jackson avoids this analysis entirely by deciding that ‘Liking’ something through Facebook isn’t speech in the first place. Jackson acknowledges that courts have granted First Amendment protection to Facebook posts in the past, but he notes that those cases involved “actual statements,” worded messages that required more than the mere click of a mouse. Merely ‘Liking’ a Facebook page, Jackson reasons, is “insufficient” and “not the kind of substantive statement that has previously warranted constitutional protection.”

The ruling is problematic from both a legal and a common sense perspective. Legally, it appears at odds with a large body of Supreme Court precedent that has afforded free speech protection to a wide variety of symbolic acts, including the wearing of black armbands to protest war or the burning of the American flag. Even Jackson acknowledges that something as innocuous as displaying a bumper sticker could count as protected speech. Common sense-wise, the opinion is equally puzzling. When you ‘Like’ something through or on Facebook, you endorse it in a clear, if non-committal, way. Cases like this one, where the plaintiff used a ‘Like’ to express his support for a political candidate, almost seem tailor-made for protection.

The ruling has attracted its share of critics, and many agree that the case is ripe for an appeal. UCLA School of Law Professor Eugene Volokh argues on his blog that while a Facebook 'Like' is not a “highly detailed” form of expression, it is still “a means of conveying a message of support for the thing you’re liking” and is therefore due First Amendment protection. Eric Goldman, an Associate Professor at Santa Clara University School of Law, suggests that Judge Jackson’s confusion over the technical issues involved prevented him from making a better-reasoned ruling. Do you think that ‘Liking’ something on Facebook is a form of expression substantial enough to deserve First Amendment protection? Is the judicial system behind the times when it comes to technology? And will rulings like this one make you change the way you use social media?

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