Facebook And ACLU Argue That 'Liking' Something Is Protected By The First Amendment

from the like dept

Fri, Aug 10th 2012 10:39am — Mike Masnick

Back in April, we wrote about a horrible ruling that said that Facebook likes were not protected by the First Amendment. The ruling didn't make any sense at all, and we quoted two legal experts, Venkat Balasubramani and Eric Goldman, explaining why. The appeal in that case is moving forward and now both Facebook and the ACLU have weighed in to support the idea that a "like" is protected speech. Both filings are embedded below. Facebook makes the point quite clearly:

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.

Facebook goes into the specifics of the case, which involved a deputy sheriff who was fired for "liking" his boss's campaign challenger in an upcoming election. Liking a candidate is no different than saying that you like that candidate, which is undoubtedly protected speech:

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. Carter made that very statement; the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection.

The ACLU makes a similar argument:

“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.

This one seems like such a slam-dunk case that it's amazing the original ruling went the way it did. One hopes that the appeals court (Fourth Circuit, if you were wondering) recognizes the clear and concise arguments presented here, and dumps the original ruling.

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Filed Under: free speech, like
Companies: aclu, facebook

13 Comments

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RD, 10 Aug 2012 @ 10:55am

As usual
As usual, when you put "on the internet" after any kind of speech or activity, it is still being viewed as wrong/bad/evil and somehow as if its separate or different. Everyone needs a good 2x4 smacked between the eyes on this to finally "get it" that "internet" and "online" are not inherently evil.
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Anonymous Coward, 10 Aug 2012 @ 11:00am

Got a link to the original decision? I'd be interested to see how the Court arrived at this decision.
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Anonymous Coward, 10 Aug 2012 @ 11:00am

I support the idea that it is protected speech. One thing I will promise is you will never have to worry about me using a 'like' button. I don't do Spybook.
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Anonymous Coward, 10 Aug 2012 @ 11:01am

So money is speech but communicating that you like something isn't?

Yeah, makes perfect sense.
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Anonymous Coward, 10 Aug 2012 @ 11:06am

Re:
never mind, found it
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Anonymous Coward, 10 Aug 2012 @ 11:06am

Nevermind that liking a page was the only way to follow updates/comment on that particular feed.
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Anonymous Coward, 10 Aug 2012 @ 11:14am

Re:
Well, if you're bookmarking a page there's something there yuo find worth returning to.

What they really need is a "disagree" button that also let's you follow a page if you're debating something in the comments
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Lord Binky, 10 Aug 2012 @ 11:34am

Do I assume if you do not actively mark that you like something, you must dislike it? Too bad they don't allow me to show disapproval as easily as approval of something.
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Wally (profile), 10 Aug 2012 @ 11:52am

Re:
I respect your idea of having a dissapprove button but I can cite one reason that they don't that's pretty substantial. It's the simple fact that in FaceBook you have an environment that is supposed to be full of your friends and people you met in real life. You can easily dislike something someone says on Facebook, but it's easier not to push the like button and use commentary for disapproval. So I honestly truly think the whole premise of the like button is meant as an "oh that's a good thought" or "congratulations", which encourages people and in general builds them up.
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John Fenderson (profile), 10 Aug 2012 @ 11:53am

Re:
What if you had to pay to click the Like button? That should turn it into speech.
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John Fenderson (profile), 10 Aug 2012 @ 11:55am

Re: Re:
Yes, this.

The thing I like about the idea of a Like button is that it gets rid of a lot of comments (like this one) that essentially say "yes, this."
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Anonymous Coward, 10 Aug 2012 @ 1:45pm

Re:
One thing I will promise is you will never have to worry about me using a 'like' button. I don't do Spybook.

Yay! A particular AC made a snippy comment about a billion dollar company! Dude, no one gives a crap whether you use it or not.
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SujaOfJauhnral (profile), 10 Aug 2012 @ 2:32pm

'Tis sad they had to argue for it. Sadder that there are people in this world who honestly believe liking something is not a manner of speech/expression in it's own right and therefore should not be protected.
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