Are Facebook 'Likes' Protected By The First Amendment?

from the they-should-be,-but... dept

Gak!

The court’s conclusion on qualified immunity may or may not be defensible, but the court veered off course in concluding that a Facebook like is not speech. Maybe the court slept through Arab Spring and the many other instances of online activism in the past five years. Maybe the court is unaware of the robust body of First Amendment precedent which says that protection for expression is not limited to just actual words. Hello, Tinker (black arm bands) and Texas v. Johnson (flag burning)! More likely, as Eric notes in his comments below, the practical implications of a "like" threw the court for a loop.

It’s easy to dismiss Facebook "likes" as one of those mindless knee-jerk online activities we all routinely engage in that have little or no societal value. Courts can discount Facebook friendships in other contexts (see, e.g., Quickly v. Karkus, discussed here: “It’s Officially Legal: Facebook Friends Don’t Count”), but it’s well off the mark to say in this case that "likes" were not speech for First Amendment purposes. As menial as a Facebook like may be in the overall scheme of life, it’s an announcement to your Facebook friends that you support something, whether it’s a cause, a candidate, a company, or another person. A like also promotes a particular page or newsfeed to your friends, which sounds like quintessential expressive activity. [See Eric's comments below for various potential implications of a Facebook like.]

While I remain leery of Facebook's "like" ecosystem, I "dislike" this ruling.

Listing a person's name as an "endorser" of a political candidate is core First Amendment activity. That's exactly what the "likes" did here.

Filed Under: arab spring, first amendment, social media
Companies: facebook

Independent Panel Compares London Riots To Arab Spring, Highlights Hypocrisy Of Wanting To Control Social Media

from the do-as-i-say-not-as-i-do dept

After last year's riots in London, the British government established an independent panel to try to make some sense of what happened. Among the many things they examined were the claims by some that social media and text messaging were largely responsible, and that the government might need some kind of "kill switch" on these services to stop the same thing from happening again. The panel recently published an interim report, and their response to the social media question (as highlighted in the Guardian) is refreshing:

On the role of social networks, the panel concluded that rioters were aided by instant messaging services but warned against plans to shut down websites such as Twitter and Facebook. They pointed out that the UK has pledged support for the open use of social media during the Arab spring uprising across the Middle East.

"Mobile communications technology is continually evolving and new developments may benefit the police and authorities rather than rioters," the panel concluded. They added that some mobile networks have installed systems to detect crowds and the direction they are moving in so they can manage congestion.

"In the future, it may be possible to use cell congestion monitoring as a tool to tackle rioting," the report found. "What is clear from the riots is that there is no simple 'switch off' solution. Viral silence may have as many dangers as viral noise."

This touches on a couple of points we've made before—like the fact that smart cops can use social media to their advantage—but the highlight is the direct and unabashed comparison to the Arab spring riots. That's a controversial topic, with many people insisting that rioters in a democracy are fundamentally different than those in living under an oppressive regime. While I can see how people have less sympathy for the former, this argument has always bothered me, because it is used as justification for stronger methods (like shutting down Twitter) of stopping riots. That creates a strange paradox: the idea that oppressive measures are acceptable, but only for non-oppressive governments. While it's easy to look at some of the London rioters and see spoiled kids, it's important to remember that dictators see the rioters in their countries the same way.

So it's nice to see the panel underline the contradiction of supporting the open internet in the Middle East while wanting to control it at home. We've noted this exact hypocrisy at play in the U.S., where the State Department takes a vocal public stance in favor of an open internet around the world, while their diplomats quietly push copyright censorship systems in other countries—or where Joe Biden can opine against censorship while supporting SOPA and its censorship provisions. Of course, in that regard, the UK is not much better, and seems to have a similar blind spot when it comes to copyright law and the many ways it contradicts their stance on internet freedom.

Filed Under: arab spring, london, riots, social media, social networks, uk
Companies: facebook, twitter