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 Rosenthal-j@blankrome.com.
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