Most of us “like” things on Facebook without a second thought, whether it’s a political campaign or a fascinating Care2 story your friend shared. But now, those casual decisions could have much larger repercussions because of a case that was just decided in Virginia. According to U.S. District Judge Raymond Jackson, clicking a “like” button on Facebook does not count as constitutionally protected speech.
This all started back in 2009, when Sheriff B.J. Roberts fired six members of his staff during his bid for re-election, which he won. According to Roberts, some of the workers were fired because he wanted to replace them with “sworn deputies,” while others were let go because of his belief that their actions “hindered the harmony and efficiency of the office.” One of the workers, Daniel Ray Carter, also happened to have “liked” the Facebook page of Roberts’ opponent. It’s clear that although Roberts does not use Facebook, he knew about — and was angered by — Carter’s action. In court documents, Carter said that when the post was mentioned during a meeting, he thought Roberts was going to punch him.
Government employees are permitted to express themselves as citizens when it comes to public matters, but Judge Jackson ruled that clicking a button is not the same as writing out a statement and posting it to a site, and is consequently not protected speech under the First Amendment. He acknowledged that other courts have ruled different types of Facebook postings to be constitutionally protected, but he said that those were “actual statements.”
But other legal scholars disagree. According to some, a Facebook “like” is comparable to wearing a button or putting a bumper sticker on a car. Eugene Volokh, a law professor at UCLA, said that a thumbs-up gesture is a symbol protected by the First Amendment, and that “liking” something on Facebook should be treated as a verbal expression, because it produces text on a screen.
“Going to a candidate’s Facebook page and liking it in my view is a political statement. It’s not a very deep one, but you’re making a statement when you like a person’s Facebook page,” explained Marcus Messner, a professor at Virginia Commonwealth University. To be honest, though, whether a Facebook Like is “speech” or not, it seems like it should still be Constitutionally protected — if it’s not speech then it should be interpreted as an association. After all, if Liking something neither says anything nor associates the Facebook user with anything, then what does it do?
The decision raises troubling questions about what constitutes protected rights. It’s hard to misinterpret a Facebook Like: it’s intended as a way of showing that we like something. If a “like” doesn’t count as free speech, then what other kinds of speech could be unprotected by the Constitution?
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