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.
Subscribe to The Legal Intelligencer
