Does the First Amendment protect your freedom to "Like" a Facebook page? A federal court has ruled that, no, it does not.
Several months ago, former employees of the Sheriff's Department in Hampton, Va., filed a First Amendment-based lawsuit against Sheriff B.J. Roberts. In Bland v. Roberts, the employees alleged that Roberts fired them for actively supporting Jim Adams, the candidate who opposed his reelection bid. At least one of the employees had Liked Adams's Facebook page.
In a recent memorandum justifying a grant of summary judgment to Roberts, District Judge Raymond A. Jackson concluded that Facebook Likes are not Constitutionally protected speech.
Jackson reasoned that because similar cases about Facebook posts have only involved actual comments or other "actual statements" that one might type out with a keyboard, Bland does not merit extension of free speech protections.
Jackson concludes that a Facebook Like does not rise to the level of any kind of "expressive speech" -- seemingly on the basis that it involves but a single tap with one's finger.
It is axiomatic that not all conduct intended to express an idea qualifies as "speech" under the First Amendment. [United States v. O'Brien, 391 U.S. 367, 376 (1968)]. Nevertheless, the Supreme Court has "long recognized that [free speech] protection does not end at the spoken or written word." [Texas v. Johnson, 491 U.S. 397, 404 (1989)]. In weighing whether conduct rises to the level of speech under the First Amendment, the Court deems it sufficient that "intent to convey a particularized message was present, and... the likelihood was great that the message would be understood by those who viewed it." [Id., citing Spence v. Washington, 418 U.S. 405, 410-11 (1974)].
It is difficult to see how taking an action that confirms and announces -- in plain language -- that you Like something is not conduct "inten[ded] to convey a particularized message" bearing great "likelihood... that the message would be understood by those who viewed it." [Supra.] True, "liking" a Facebook page does not necessarily mean that you actually approve of what it stands for. It may merely indicate that you care to follow messages and activity on that page. Even this, however, is a "particularized message" that is "likel[y to] be understood[.]" [Id.]
Facebook Likes also implicate free association rights under the First Amendment. By Liking a Facebook page, you are placing yourself in an association with the person or group responsible for managing the page. You are also enabling communication (or "associating") via posts on the page with other people who have done likewise. If Jackson considered these factors, he did not appear to address them in his Memorandum.
While the plaintiffs may not ultimately prevail on their claims even if they successfully appeal this particular point of First Amendment law (Jackson also held that Roberts is entitled to both qualified and Eleventh Amendment immunity), it seems unlikely that an appellate court would affirm Jackson's ruling on Facebook Likes.
Some are quick to indict judges like Jackson as wanting in their judicial wisdom because of an alleged lack of familiarity with technology. Regardless of the fairness of this broad criticism, the idea that the First Amendment requires some de minimis level of physical activity greater than a mouse click before conduct can be deemed "speech" lacks a sufficient legal basis. Like it or not, it shouldn't take a technocrat to realize that.
--Joe Stanganelli is a writer, attorney, and communications consultant. He is also principal and founding attorney of Beacon Hill Law in Boston. Follow him on Twitter at @JoeStanganelli.