Judge Rules 'Likes' Aren't Speech

I agree with you Kim. I think "Likes" definitely count as speech and the courts will have to decide this as well at some point (perhaps after some more time wasting).

If it does nothing else, clicking that "like" button puts it on record that "I like this."  That's plainly speech, whether it's sincere, insincere, or has additional motivations (following a page).  I can't imagine how anyone could conclude otherwise.  The number of clicks required is surely irrelevant.

I am trying to remember now whether slogans on t-shirts qualify as protected speech.  I thought they did.

Hi, Ariella.

Another part of the judge's reasoning involved the ambiguity of what a Like means (as people frequently "Like" pages where they don't necessarily support what the page stands for).  This is important for reasons discussed in my earlier comment below to Bolingbroke regarding matters of public concern vs. personal interest.

I don't really buy the argument that a click renders the action of "liking" into a realm other than speech.  I suppose that it was seen as a stronger kind of endoresment than speech alone would convey and so a mark of disloyalty. Granted, the employees were indiscreet, perhaps even foolhardy, to take such a public stance. However, it is difficult to say that the lack of caution on their part warrants their loss of a job and constitutional rights.

Hi, Nicole.

True, but even if we discount the speech as so ambiguous as to be insufficient to warrant protection, it's nonetheless implicates First Amendment free association rights for the very reasons you outline.

In any case, the plaintiffs made very clear their allegations that they were fired for supporting the sheriff's opponent.  One or two of the plaintiffs (not 100% clear from the opinion) Liked the opponent's page.  Another had a bumper sticker supporting the opponent.  Yet others had allegedly engaged in other actions of support of the opponent.

Hi Joe. This is sort of thorny, isn't it? I understand why liking an opponent's Facebook Page would seem controversial here. At the same time, though, "Liking" a Facebook Page could also just be a way of trying to stay up to date with the news coming from that page. It doesn't necessarily have to mean support. In a way, it's akin to putting a competitor's blog in your RSS feed.

Of course, I don't know the person's motives for liking the page. I don't care, either, because the issue here is free speech. And I do think we'll revisit this issue again because people will expect that "Likes" fall under the category of speech.

Hi, Lin.

Regarding this particular case, the issue you bring up of establishing the Like is not particularly relevant.  The plaintiff is the one himself who alleged Liking the page, and the defendant apparently did not contest the point, merely contesting knowledge or existence of any other activity plaintiff may or may not have undertaken on the page.

Also, the order was one for summary judgment.  Grants of summary judgment assume (and this is a very watered down explanation of summary judgment) that the everything the opposing party is proposing to testify and admit into evidence is accepted as true but that the opposing party's claim must nonetheless fail as a matter of law.

In the general context, yes, no doubt that what you are talking about is very important as a matter of refuting/supporting evidence in court cases.

Hi, Bolingbroke.

The newsworthy issue here is that the act of Liking something on Facebook is not, according to this judge's opinion, even speech -- let alone protected speech.

But to explain further in this particular context...

Strictly in the government employee context, expressions regarding matters merely of personal interest are not necessarily protected speech (If the employees had liked the Facebook page for Target and the Sheriff fired them because he was a devoted Wal-Mart shopper, we probably would not be having this discussion), whereas expressions regarding matters of "public concern" (e.g., candidates an election) generally are. 

The Ted Nugent example is a gray area.  If we are living in a world where Facebook Likes *are* speech, defendant would argue -- regarding the freedom of speech issue only -- that Ted Nugent is merely a celebrity, and thus Liking his Facebook page is merely an expression of personal interest, not arising to the level of "public concern" (and therefore, not protected in this context); plaintiffs would argue that Ted Nugent is a divisive political figure and they were fired over expressions of political views of "public concern."

Of course, this is to say nothing of the freedom of association issue; I maintain my stance that just as Likes ought be considered speech, they must too be considered association.


(Disclaimer: Nothing in this comment is legal advice or the creation, implication, or confirmation of an attorney-client relationship blah blah blah etc. (see Slide 2 here).)

Joe, I don't understand -- is it the click required to establish a Facebook Like, or was it the deputies' admission of ownership of the act of clicking on the Like?  Does the fact that it is Facebook /social-media remove the responsibility of the accuser to prove that I was the one that clicked that Like button?  I know that if I were in trouble for one of the Facebook Likes associated with my Facebook page, I would be asking the other side to prove that I was the individual that clicked on the Like.  There are a lot of computers in my house, in different rooms, so it is possible that someone else could have clicked that Like button. Perhaps even my dog jumped up on the desk, stepped on the keyboard and hit that Like key.  Is a Facebook user automatically responsible for any Like that is associated with their page, or do they need to admit to Like'ing? 

Rather than liking a political foe what if they had given a thumbs up to Ted Nugent? Are we having the same discussion? Or is the matter of the "liked" unimportant?