Facebook and ACLU Challenge the Ruling That “Likes” Are Not Free Speech

August 21, 2012
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What if “liking” a page on Facebook could cost you your job?

<a href=”http://www.nytimes.com/2012/05/06/us/clicking-like-on-facebook-is-not-protected-speech-judge-rules.html?_r=1″>A judge in Virginia ruled last spring</a> that Facebook “likes” are not protected under the First Amendment. According to U.S. District Judge Raymond Jackson, “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”

This ruling dismissed the case of six employees of Hampton, Virginia’s sheriff department, all of whom were fired for supporting the opposing candidate in the upcoming election. Three of them had “liked” the page of the challenging sheriff.

The case is now being appealed, with Facebook itself stepping up to defend the rights of its millions of users, along with the ACLU.

<a href=”http://news.cnet.com/8301-1023_3-57488210-93/facebook-to-court-likes-are-protected-by-first-amendment/”>Facebook claims that a “like” is equivalent to speech</a>: “It is a statement that will be viewed by a small group of Facebook Friends or by a vast community of online users.” They argue that “liking” a political candidate is no different than <em>saying</em> you like that candidate, which is unquestionably free speech. Just because the act takes place “online, with the click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection,” Facebook said in their filing.

The <a href=”http://www.techdirt.com/articles/20120810/03003419985/facebook-aclu-argue-that-liking-something-is-protected-first-amendment.shtml”>ACLU’s claim echoes the same idea</a>, stating that a “like” is “verbal expression, as well as symbolic expression” and that simply because “‘liking’ requires only a click of a button does not mean that it does not warrant First Amendment protection.” They compare “liking” a political candidate to holding a campaign sign, an act that is constitutionally protected speech.

This issue doesn’t have to stay in the realm of the political. What if “liking” comics –for example, <em>Zahra’s Paradise</em>, about the Iranian revolution, or Grant Morrison’s <em>The Invisibles, </em>with its themes of subverting authority — could lose you your job? Could “liking” comics “hinder the harmony and efficiency of the office,” as the <a href=”http://news.cnet.com/8301-17852_3-57428717-71/could-you-get-fired-for-a-facebook-like/”>Virginian Sheriff claimed</a> in the original case?

Online profiles and real life are becoming more and more intertwined. But where do our First Amendment rights end?

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<em>Becca Hoekstra is a journalism student at City College of San  Francisco. She thinks way too much about gender representation in media.</em>