ACLU, Facebook like ‘Like’ as protected speech

Thursday, August 9, 2012

Clicking the “Like” button on Facebook constitutes protected speech under the First Amendment, the American Civil Liberties Union and Facebook asserted in separate, friend-of-the-court briefs in a case before the 4th U.S. Circuit Court of Appeals.

The case involves six employees who were fired by Hampton, Va., Sheriff B.J. Roberts after they supported his re-election opponent in 2009. One had “liked” the Facebook page of Roberts’ opponent.

Earlier this year, U.S. District Judge Raymond A. Jackson ruled in Bland v. Roberts that clicking the opponent’s “Like” button on Facebook was not protected speech. Jackson reasoned that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.”

The effect of this conclusion was that the sheriff could remove employees from their jobs for supporting his opponent.

As First Amendment Center President Ken Paulson said in a commentary, the district court’s decision had “a flawed view of the First Amendment and a lack of respect for emerging media.”

The court said it found no protection for clicking “Like” because it was not as clear as a written comment. The decision also seemed to downplay the reality that the employee had engaged in pure political expression.

The ACLU and Facebook contend that clicking “Like” on Facebook amounts to protected political speech – the core type of speech the First Amendment was designed to protect.

In its brief, the ACLU and the ACLU of Virginia say that “’Liking’ something on Facebook expresses a clear message — one recognized by millions of Facebook users and non-Facebook users — and is both pure speech and symbolic expression that warrants constitutional protection.”

Facebook says in its brief that “the use of social networking and other online communities to rally support for political candidates and causes is a contemporary example of quintessential political speech.”

Many civil-liberties and other groups are watching with concern about the the ultimate outcome of the “Like” issue. Now, that’s something to “Like.”

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