Friday, August 17, 2012

"Like" On Facebook Is Not Speech Protected by the 1st Amendment

Is "like" free speech?  Apparently not, at least not in Virginia.

An interesting issue has evolved at the crossroads of technology and the First Amendment.  Is clicking "like" on Facebook protected speech?  The case should be of interest to many writers who use Facebook and other social media to promote their work.

A federal judge in Virginia has ruled that "Like" is not speech and therefore not protected by the First Amendment.

The issue, as do so many First Amendment / Civil Rights issues, arose out of a political campaign and a rabbit-eared sheriff.  For some reason, many First Amendment issues arise in the context of sheriffs, who sometimes view themselves as being the unassailable law of their domain.  (The seminal U.S. Supreme Court case on the First Amendment -- New York Times v. Sullivan -- involved a sheriff).

Daniel Ray Carter, Jr., along with several other employees of the Hampton, VA Sheriff's Department, went on Facebook and clicked "like" on a page for a candidate for Sheriff.  The problem was the candidate was running against their boss, long-time Sheriff B.J. Roberts. 

When Sheriff Roberts saw that Carter and the others had "liked" the Facebook page of his opponent, he fired them.

Carter sued for violating his First Amendment rights and his civil rights.  But Federal District Judge Raymond A. Jackson sided with the Sheriff, holding that
 "clicking" on a Facebook icon was not sufficient speech to warrant First Amendment Protection.  Specifically, his opinion stated:

"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 Carter’s posts from one click of a button on Adams’ Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection."

My personal view is that this decision shows a remarkable lack of understanding of both the expanse of the First Amendment and current technology.  I am unaware of any other case that determines that something isn't "enough speech" to warrant First Amendment protection. 

Freedom of speech and association goes beyond standing on a soap box in the public square.  It encompasses all manner of expression - except apparently "Liking" on Facebook while in Virginia.
Carter has appealed to the 4th Circuit Federal Court of Appeals, and both Facebook and the ACLU have filed briefs in support of Carter.  

For news coverage, take a look at the Washington Post article: A Facebook Court Battle.  

For a detailed analysis of the case, check out the Citizens Media Law Project by CLICKING HERE. 

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