Facebook tells court ‘like’ is free speech and should be protected

Story has it there was an election for Office of Sheriff in Hampton, Virginia USA. Five people working under the current sheriff (B.J. Roberts), who was up for re-election, didn’t really support him; three of these five even went so far as to ‘like’ the Facebook page of the person running against the incumbent. Come election time, Roberts won re-election and subsequently fired the five people who didn’t support him. The sheriff claimed this was due to cost-cutting measures but the Hampton Five were able to prove the sheriff knew about the Facebook likes and decided to sue, claiming the sheriff violated their First Amendment rights to free speech.

The US District Court of Eastern Virginia ruled against the plaintiffs saying Facebook likes do not have constitutional protection:

“[It] is the court’s conclusion 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 plaintiffs, of course, appealed the decision. Upon appeal, two heavyweights have come out in support of the plaintiffs, the American Civil Liberties Union (ACLU) and Facebook.

In its amicus brief to the court, the ACLU states likes do indeed constitute free speech:

“‘Liking’ a political candidate on Facebook – just like holding a campaign sign – is constitutionally protected speech. It is verbal expression, as well as symbolic expression. Clicking the ‘Like’ button announces to others that the user supports, approves, or enjoys the content being ‘Liked.’ Merely because ‘Liking’ requires only a click of a button does not mean that it does not warrant First Amendment protection. Nor does the fact that many people today choose to convey their personal and political views online, via Facebook and other social media tools, affect the inquiry.”

Facebook issued similar support for like-is-protected-speech in its amicus brief:

“When a Facebook User Likes a Page on Facebook, she engages in speech protected by the First Amendment. In this case, Plaintiff Daniel Ray Carter, Jr. alleges that Defendant B.J. Roberts, the elected sheriff of Hampton, Virginia, fired him from his position as deputy sheriff because Carter Liked the Facebook campaign Page of Roberts’s challenger in the 2009 election, and that his firing violated his rights under the First Amendment. The district court’s holding that ”liking’ a Facebook page is insufficient speech to merit constitutional protection’ because it does not ‘involve[] actual statements’ betrays a misunderstanding of the nature of the communication at issue and disregards well settled Supreme Court and Fourth Circuit precedent. Liking a Facebook Page (or other website) is core speech: it is a statement that will be viewed by a small group of Facebook Friends or by a vast community of online users.”

Only time will tell if the appellate court is swayed by the plaintiffs, ACLU, and Facebook into declaring likes to be protected speech. In my personal non-legal opinion, declaring likes as protected speech is probably a good thing for the general public at large seeing as how popular Facebook is in today’s world. Do you agree? Share your thoughts with us in the comments below.

[via ArsTechnica | Image credit: Sean MacEntee]

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