Is ‘liking’ on Facebook a First Amendment right?

Thursday, May 31, 2012

I “like” the First Amendment.

And Bruce Springsteen. And the Chicago White Sox.

In fact, you’ll find my “likes” on Facebook pages devoted to news, sports and music. All along, I’ve believed I was sharing my positive opinion of the people and organizations behind these pages. But now comes a federal court saying that clicking on the “like” button is not free speech after all.

The decision came in a wrongful-termination case last month in Hampton, Va., in which former employees of a sheriff contended that they were fired for supporting his political opponent, in one case by “liking” his page on Facebook. A threshold question in the case was whether clicking the “like” button constitutes free expression protected by the Constitution. The court concluded that it doesn’t.

“Merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” Judge Raymond Jackson wrote. “In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.”

In other words, a sentence along the lines of “I like this candidate” would be protected by the First Amendment, but clicking a button that suggests the very same thing would not be.

The judge seemed to be influenced by the simplicity of clicking a button and possibly by the medium itself. Apparently it was hard to recognize the constitutional underpinnings among the personal comments, pet videos and family photos. It’s an unfortunate decision and one that is not likely to stand the test of time or judicial review. At its core are a flawed view of the First Amendment and a lack of respect for emerging media.

Keys to First Amendment

In weighing questions of First Amendment protection, it’s important to remember:

  • Communication does not have to be lengthy or difficult to come under the protective umbrella of the First Amendment. A tweet is as protected as a tome.
  • Freedom-of-speech guarantees don’t require express statements or even words. Yes, even mimes are protected by the First Amendment. There are many non-verbal ways to share ideas.
  • New media and communication don’t have to evolve into earning First Amendment protection. It’s there from the outset.

Throughout judicial history, there has often been a lag time between the development of powerful new media and recognition of First Amendment protection.

Motion pictures were first exhibited in the 1890s, but it wasn’t until 1952 that the Supreme Court concluded that films enjoyed First Amendment protection.

The first Web page was posted in 1991, but it wasn’t until 1997 that the Supreme Court established free-speech rights on the Web.

Video games protected

We played Pong in 1972, but video games didn’t have First Amendment protection in the courts for more than 40 years. The change came in part because the games grew more sophisticated and expressive over time, and arguably because a new generation of judges grew up with them. The definitive ruling came last June from the U.S. Supreme Court.

“Like the protected books, plays, and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices,” Justice Antonin Scalia wrote for the 7-2 majority.

Last December, a federal judge in San Francisco found that tweets are constitutionally protected as free speech. Judge Roger W. Titus dismissed a criminal case against a man who was accused of using Twitter to harass and cause emotional distress to a Buddhist religious leader.

Titus concluded that tweets are public speech and can easily be avoided by a recipient who doesn’t want to see them. “While (the defendant’s) speech may have inflicted substantial emotional distress, the government’s indictment here is directed squarely at protected speech: anonymous, uncomfortable Internet speech addressing religious matters,” Titus wrote.

Like Twitter, Facebook is a forum for ideas and information. Of course, the “like” button on a candidate’s home page is protected speech. Commenting on the merits of a candidate is at the very heart of the First Amendment. The inverse — a government regulation saying you can’t click a button in symbolic support of a candidate — would be clearly unconstitutional.

“Liking” a political candidate encompasses freedom of speech and press, but also illustrates the First Amendment rights of assembly (gathering virtually) and petition (signing on in support of a cause). Clearly clicks count.

In the end, this federal court’s decision will be a footnote in a history of communications that will grow ever more innovative and intuitive. Over time, courts will recognize the remarkable range of ways in which Americans have a right to express themselves, interactively and in real time. Parchment was rarely this potent.

This article was first published in USA Today May 30.

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