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Like It or Not, Online Preferences Are Not Protected SpeechDoes the First Amendment protect what you "like" on Facebook? Obviously, Facebook, with its vested interest in shielding all forms of user expression, would argue it does. But now it is not alone in that belief. In August 2012, the social media giant teamed up with the American Civil Liberties Union to oppose a Virginia district court's decision that merely clicking the "like" button is insufficient speech to merit constitutional protection.
2013-01-22 12:00:00 AM
Does the First Amendment protect what you "like" on Facebook? Obviously, Facebook, with its vested interest in shielding all forms of user expression, would argue it does. But now it is not alone in that belief. In August 2012, the social media giant teamed up with the American Civil Liberties Union to oppose a Virginia district court's decision that merely clicking the "like" button is insufficient speech to merit constitutional protection.
Facebook is certainly hoping it will like what the U.S. Court of Appeals for the Fourth Circuit has to say on the matter.
BIG THINGS CAN HAVE SMALL BEGINNINGS
The case of Bland v. Roberts, 857 F. Supp. 2d 599 (E.D. Vir. 2012), started off simply enough.
In the summer of 2009, longtime Hampton, Va., Sheriff B.J. Roberts was running for re-election in Virginia. Yet, some of his employees chose to back his opponent, Jim Adams. This included the online support of Adams' Facebook page by two employees (Daniel Ray Carter Jr. and Robert W. McCoy) and one employee (Carter) "liking" said page.
According to court papers, when Roberts found out, he became "incensed" telling his staff he would be sheriff "as long as I want it."
A month after Roberts was re-elected, he fired six employees who had either supported Adams or had not actively campaigned for him including Carter. The employee-plaintiffs filed suit in the U.S. District Court for the Eastern District of Virginia, alleging the firing violated their First Amendment rights to freedom of speech and association. Roberts said the firings were based on unsatisfactory work performance and the disruption the campaigning had caused.
In April 2012, Judge Raymond A. Jackson ruled that the plaintiffs' rights were not violated and, thus, the attendant terminations were within the bounds of constitutional law because there are no words associated with clicking the "like" button on Facebook.
"Simply liking a Facebook page is insufficient," Jackson wrote. "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."
The plaintiffs quickly filed an appeal to the Fourth Circuit in May 2012.
FACEBOOK AND THE ACLU WEIGH IN
Just three months after filing their appeal, the plaintiffs gained two powerful allies in their fight to overturn the district court: Facebook and the ACLU. Although each filed separate amicus briefs to the Fourth Circuit, the overall message was the same: Liking a Facebook page (or other website) is core speech, and is unquestionably worthy of constitutional protection.
According to the social network, speech on Facebook should be afforded the same protections as speech in newspapers, on television and in the town square.
Indeed, Facebook's brief expressed strong disapproval of Jackson's conclusion explicitly claiming the district court had a fundamental "misunderstanding of the nature of the communication at issue" and that the district court had disregarded well-settled Supreme Court and Fourth Circuit precedent on protected means of personal expression.
For Facebook, the fact that Carter's expression came in the form of a digital rather than physical act was of no moment to the constitutional analysis. "If Carter had stood on a street corner and announced, 'I like Jim Adams for Hampton Sheriff,' there would be no dispute that his statement was constitutionally protected speech," asserted Facebook.
Facebook goes on to explain that "when Carter clicked the Like button on the Facebook Page titled 'Jim Adams for Hampton Sheriff,' the words 'Jim Adams for Hampton Sheriff' and a photo of Adams appeared on Carter's Facebook profile in a list of pages Carter had liked the 21st century equivalent of a front-yard campaign sign." Had the district court fully appreciated such practical implications of clicking the button, Facebook maintains that a different result would have (and should have) been reached by the court.
For its part, the ACLU further analogized clicking the "like" button to other representative forms of speech such as wearing a campaign pin or placing a bumper sticker on a car.
The ACLU also critiqued the district court for focusing on what it considered to be the immaterial issue of the ease in which the communication was conveyed (i.e., via a single mouse click). "Whether someone presses a 'like' button to express [their] thoughts or presses the buttons on a keyboard to write out those words, the end result is the same: one is telling the world about one's personal beliefs, interests and opinions. That is exactly what the First Amendment protects, however that information is conveyed."
IMPLICATIONS: LIVE AND LET LIKE?
What's in a mouse click? The answer (at least according to Facebook and the ACLU) is quite a bit when that click represents the expression of personal online preferences.
The "like" button is one of Facebook's most ubiquitous and well-recognized features. According to Time, 382,861 "likes" are recorded every 60 seconds; more than 3 billion "likes" and comments are posted every day. So, naturally, Facebook is fighting hard to protect anything to do with the little blue button its users have come to know and love.
Whether the Fourth Circuit will side with Facebook and the ACLU to reverse Bland is the topic of much speculation. As the only court to have addressed this novel issue, Bland represents the sole pronouncement of federal law with respect to the lack of constitutional protection over such digital expression.
As shown, what makes Bland so unique is that the employee-plaintiffs at issue worked for the government. And the government cannot fire pubic employees based on their speech activities. While, generally speaking, private companies are not bound by the First Amendment, the ultimate decision in Bland could set a major precedent for all emerging forms of speech, well beyond the realm of Facebook and its "like" button.
For example, if the ruling is upheld, the ACLU and others worry that any number of similar Web-based "mouse-click actions" (such as retweeting) would also not be protected as free speech.
Along those lines, some noted commentators feel strongly the district court got it wrong.
For instance, UCLA School of Law professor Eugene Volokh told The New York Times in May 2012 that the "like" button "is conveying a message to others. It may just involve a mouse click, but a major point of that mouse click is to inform others that you like whatever that means."
Professor Eric Goldman of the Santa Clara University School of Law did not even see the First Amendment issue raised by Bland as a close question. In fact, he wrote on his technology and marketing law blog that the simple fact other users can see who has publicly liked a Facebook page is alone sufficient to resolve this issue.
"Listing a person's name [on Facebook] as an 'endorser' of a political candidate is core First Amendment activity," according to Goldman.
Marcus Messner, a journalism and mass communications professor at Virginia Commonwealth University who specializes in social media, told The New York Times in May 2012 that "going to a candidate's Facebook page and liking it, in my view, is a political statement. It's not a very deep one," admitted Messner, "but you're making a statement."
Notably, Facebook's transformative efforts with respect to safeguarding online expression extend well beyond the judiciary.
According to Politico, Facebook stepped up its lobbying efforts in 2012 by spending more than $1.6 million on the Hill. And with good reason: America Online, another online service provider, successfully employed this same tactic in the 1990s to protect itself from potentially crippling legal issues in the form of the Digital Millennium Copyright Act of 1988 (which allowed online service providers to remove copyright-protected content without punishment) and Section 230 of the Communications Decency Act of 1996 (which made websites not legally responsible for the actions of their users, including defamatory comments). It is widely believed these two rulings "established the Internet as a viable business," according to Scott Bomboy, editor-in-chief of the National Constitution Center's blog, Constitution Daily.
Despite the rhetoric in its amicus brief, courts have nonetheless disregarded the significance of online associations. In Quigley v. Karkus, 2009 U.S. Dist. LEXIS 41296 (E.D. Pa. May. 15, 2009), for example, the court said it was of "no significance" that the defendant was Facebook friends with members of a group challenging a corporate board in determining whether he was part of the group under Section 13(d) of the Exchange Act of 1934.
Other commentators have posited that no matter how the Fourth Circuit decides Bland, this issue is inevitably headed to the Supreme Court.
Regardless, one thing remains certain: The resolution of this murky legal question is bound to shape the future of all online expression.
Jeffrey N. Rosenthal is an attorney with Blank Rome. He concentrates his practice in the areas of complex corporate and commercial litigation, and specializes in cases involving technology. He regularly publishes articles on the non-traditional uses of social media and its implications for modern practice. He can be reached at Rosenthalemail@example.com.