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.

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.

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.

Filed Under: expression, first amendment, free speech, like
Companies: facebook

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

from the like dept

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.

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

How Many Websites Have Totally Bogus Traffic Numbers Due To Facebook Bug?

from the just-wondering... dept

For a while now, we've heard of websites claiming that they now get a ridiculous amount of referral traffic from Facebook. We've certainly noticed that we get a decent amount of traffic from Facebook, but it's rarely in the top five sites for referrals. For a while, I've just wondered if people just don't like to pass around our stuff on Facebook (as opposed to Twitter, which does drive lots of traffic -- or if, perhaps, we didn't do enough to encourage people to follow our Facebook page). However, something odd happened a couple weeks ago. All of a sudden, we noticed a ton of traffic coming from Facebook. Before noon, we'd already passed a normal day's worth of traffic, and by the afternoon, we were on track to more than triple a standard day's page views. But, then we noticed a few oddities. First, a lot of the traffic was going to relatively old stories. Second, doing a search on Facebook didn't turn up anyone linking to those stories. Third, and most importantly, looking at the number of unique visitors, as opposed to pageviews, showed that those were more or less in line with a standard day's traffic. Clearly something was off.

I started chatting with a few folks about it, and Marcus Carab pointed us to information on a Facebook bug that's been around for about a year, in which Facebook's "like" button adds a string (fb_xd_fragment, for those who are curious) to the URL that leads to a blank page... often causing multiple pageviews. There are workarounds, though it's stunning that Facebook -- which is pushing use of the "like" button all over the place -- has not implemented its own fix. By that evening we'd installed a workaround, redirecting the bogus links to legitimate links, and stopping some of the false reloads. Yet, over the next few days, we noticed that even when we fixed that "known" problem, we were still seeing a hell of a lot more traffic from Facebook than made sense or that we had seen before.

Eventually, we used the referrer URL (www.facebook.com/plugins/like.php?....) to track it down to a problem with the way Facebook's "like" button behaves when our pages are accessed with IE7 (and possibly IE6). Something in the button basically goes into a loop and just keeps requesting the page that it is on -- essentially, repeatedly "reloading." This makes page views shoot up like crazy. Because of this, if you visit our page with IE, we no longer show you a "like" button. Since doing so, our pageview numbers have returned to expected levels. (For our IE users, now that we've confirmed that the problem was the like button on IE, we plan to try an alternative implementation of the like button to see if that avoids the problem.)

Apparently, we're not alone. Other sites also just noticed that they were dealing with similar issues and put in place similar workarounds.

But here's the question: how many people don't realize that these Facebook bugs exist, and are happily lapping up the not-really-there pageviews and reporting them as legit? I would guess that many people who are recipients of such a traffic deluge honestly don't realize that it's a bug and that the traffic is phantom traffic. But it wouldn't surprise me if a few sites are simply happy for any way to "juice" their numbers. Over the years there have been a few big cases of newspaper circulation scandals. It kind of makes you wonder when we'll start to see something similar with websites that report fake numbers concerning their traffic?

Of course, for us, being honest probably costs us money. Since many ad campaigns work on a page view (CPM) basis, if we can report triple our existing page views, that certainly would boost our ad revenue. But it's also incredibly dishonest, and, for those who know this is happening, potentially fraud. It seems like only a matter of time until we hear about sites purposely leveraging such things for their own advantage.

Filed Under: bug, like, traffic, web traffic
Companies: facebook

Class Action Lawsuit Says Facebook Violated The Law By Letting Kids Like Ads

from the because,-they-better-not-like-ads... dept

It appears that a class action lawsuit has been filed against Facebook for the horrible, horrible act of letting kids like ads. As TechCrunch explains:

On Facebook, you can "like" any status update or post in your stream, but you can also "like" ads. When you do so, it can appear as a status update to all your friends if that ad is linked to a Facebook page, thus turning the "like" button into a social endorsement...

The class action lawyers claim that in the case of teenagers, Facebook is "misappropriating the names and pictures of minors for profit." Facebook might say that it is in its terms of service, that's how the site works. But the lawsuit hinges on a loophole in California law which requires parental consent in order to obtain a minor's consent for using their name or likeness for an advertisement, And Facebook doesn't do that.

This seems like a clear "unintended consequences" situation. Politicians pass a law to "protect the children" from being exploited in advertisements, but it also has the potential to get in the way of really harmless activity, such as a kid clicking a "like" button on his Facebook profile.

Filed Under: california, kids, like, protect the children
Companies: facebook