Yes, A Facebook 'Like' Is Protected By The First Amendment
from the free-speech-ftw dept
Last year we wrote about a troubling case, in which a district court ruled that Facebook "likes" were not protected speech under the First Amendment. The full details of the case are fairly complex, but the short version is that some employees of a local sheriff were fired after Facebook "liking" the sheriff's opponent in an upcoming election. The employees appealed. Both Facebook and the ACLU weighed in, urging the appeals court to reverse... and it has now done so in clear and concise language, noting that of course "liking" something on Facebook is a form of expression:Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.Of course, this doesn't mean you can't be fired for liking something (First Amendment protections are from government activities, not from what a private employer does concerning its employees -- though for government employees it can protect them). However, having a clear ruling that a "like" is a form of protected expression will likely come in handy in other cases in which others try to claim that certain forms of online expression are not protected.
Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. The distribution of the universally understood “thumbs up” symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy.
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Filed Under: expression, first amendment, free speech, like
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EVER the corporatist, Mike has to slip in a poison pill:
Under common law, a corporation better have a clear case to suppress someone's speech. Must be directly work-related.
Free speech must be a fairly absolute right that a mere legal fiction can't unduly influence. Otherwise what we'll get is "privatized" oppression instead of gov't oppression. That's no longer a theoretical concern now that corporations use computers to monitor one's activities whether on work premises or elsewhere.
Tell ya what, Mike: just clarify that you meant under certain specific and limited conditions, not that corporations have a right to snoop on non-work areas and threaten employees with firing if they don't like your political views.
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Re: EVER the corporatist, Mike has to slip in a poison pill:
Like copyright.
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Re: EVER the corporatist, Mike has to slip in a poison pill:
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Re: EVER the corporatist, Mike has to slip in a poison pill:
The problem is, when that employer is also the government, concerns about censorship become far more weighty. Because once they start firing people over speech, people get really worried the the FBCIATFTSPD (aka some sort of government police, FBI/CIA/ATF/TSA/PD) will start harassing them, shooting their dog and then themselves.
Corporations don't have private armies that can shoot you, with little note, for being 'belligerent'. And google, while possibly spying on me (and you've shown no evidence that they are actively attempting to profile me), also doesn't have a history of silencing people who argue that google is bad. I have known a few people who think google is 'too big', and used gmail to tell me about it. Who use android. And yet...no oppression.
Moreover, the 1st Amendment is not a law, its a right dictating what the government can or can't control. The rule is that amendments don't generate civil torts (the things you sue over). Thats why, despite the 14th amendment providing 'equal protection under the law' to all people, we require a host of anti-discrimination law. Because the 14th amendment did not extend to private citizenry.
Telling a corporation you can't fire someone who says X has two negative consequences: It abridges the right of free speech of the manager and owners who define the corporate image, and gives bad employees a way to prevent their firing. THe government also faces this problem, but we accept that in the public sector because of the enhanced scrutiny on the guys with the $50,000 cruise missles.
The public sector (aka government employment) has a set of rules that semi-clearly defines the bounderies of government and employer, to allow for resolutions of debates over firing. We had an article in the beginning of the month about it. No private emploer, from the mom and pop shop to Walmart, has to retain your however. If they don't like that you do Rocky Horror at midnight once a month, you can be fired. Doesn't matter why. You will likely get unemployment, cause its not 'with cause'. But you don't get to keep your job.
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Re: Re: EVER the corporatist, Mike has to slip in a poison pill:
Most don't. But many actually do.
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Re: Re: Re: EVER the corporatist, Mike has to slip in a poison pill:
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Re: Re: Re: Re: EVER the corporatist, Mike has to slip in a poison pill:
For example, there are private corporations that ARE private armies. That's what they do. And some of those companies are involved in spying on us. If you don't like what Haliburton or Pfizer or Exxon, or Academi (previously "Xe", previously "Blackwater") is doing, how are you going to affect their behavior? You're not their customer.
But you always have, potentially, a way to influence the government's behavior. It's hard, but possible. For some of the worst corporate actors, you can only stand by and watch (or not, since they tend to work in secret).
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Re: Re: Re: Re: Re: EVER the corporatist, Mike has to slip in a poison pill:
Careful, there. I've been making this exact argument for a long time, but certain dishonest minds will twist it around and accuse you of being in favor of Big Government!
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Re: EVER the corporatist, Mike has to slip in a poison pill:
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Re:
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But...
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Utopia.
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They keep missing that "like" doesn't have to imply approval.
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