ACLU & Facebook Tell Appeals Court That “Like” Is Free Speech

Last night, the ACLU filed a friend-of-the-court brief in an appeal of a federal judge’s ruling in May that “liking” something on Facebook is not speech protected by the First Amendment. In the case, now before the U.S. Court of Appeals for the Fourth Circuit, employees of a Virginia sheriff who was running for reelection were fired for “liking” the sheriff’s opponent’s webpage on Facebook and taking other actions to indicate their support for the opponent. Those employees brought a First Amendment lawsuit against the sheriff, B.H. Roberts, who fired them after he won the election.

Facebook also filed its own friend-of-the-court brief yesterday.

The district court judge ruled that “liking” something isn’t protected because it is limited to simply clicking one button on Facebook. But as the ACLU argues in our brief,

With “one click of a button,” an Internet user can upload or view a video, donate money to a campaign, forward an email, sign a petition, send a pre-written letter to a politician, or do a myriad of other indisputably expressive activities. The ease of these actions does not negate their expressive nature. Indeed, under the district court’s reasoning, affixing a bumper sticker to your car, pinning a campaign pin to your shirt, or placing a sign on your lawn would be devoid of meaning absent further information, and therefore not entitled to constitutional protection because of the minimal effort these actions require. All of these acts are, of course, constitutionally protected…

That many people today choose to convey what they like or which political candidates they support by “Liking” a Web page rather than by writing the actual words, “I like this Web page” or “I like this candidate,” is immaterial. Whether someone presses a “Like” button to express those thoughts or presses the buttons on a keyboard to write out those words, the end result is the same: one is telling the world about one’s personal beliefs, interests, and opinions. That is exactly what the First Amendment protects, however that information is conveyed.

As ACLU staff attorney Aden Fine said,

Facebook should be applauded for filing this brief to support the free speech rights of its users. The Supreme Court has made clear that the First Amendment protects everyone’s right to express their thoughts and opinions in whatever form they choose to do so. Facebook has become a means of communication for tens of millions of Americans, and if basic activity on Facebook such as “liking” were denied First Amendment protection, the free expression of ideas that the First Amendment is meant to safeguard would be severely limited.

This case is an important reminder of how the law needs to keep pace with technology, and we are hopeful that the appeals court will affirm that the First Amendment protects everyone’s right to speak freely on the Internet.

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Jay Matthew

These people were also engaged in the political process, they should be protected under that alone.

Anonymous

I like what the aclu stands for, but this does not seem to be a first amendment issue. My understanding, and it may be lacking, is that the first amendment protects us from the state, not from disapproval.

We may want to put up signs in our front yard (in accordance with city ordinances) that profess our (unhateful) opinions, but that doesn't guarantee that our neighbors must still invite us to their barbecues.
I would give the workplace special consideration, though if you work for a holocaust museum, don't expect a pass on liking a neo-nazi site!

And maybe that's part of what needs to be taken into account. Does the free speech go against the mission of the organization or business? Or just someone got individually offended?

This would require judgement, though we certainly have other laws that have the word "reasonable" in them. And this being said, is there even a present law, other than attempting to claim the first amendment, that this would fall under?

The right and need to work is special indeed, and carries much importance in our lives, but I know of no law (and feel free to educate me) that prevents an employer from being a jerk.

Paul Misner

It's called a "Like" for a reason. It is an expression of support. If someone's employment is affected by this expression of support, and other similar expression's of support are protected, then there is no logical reason why the pressing of a like button shouldn't be protected speech as well.

Anonymous

In a recent court case, Eastern Federal District Court, defendant couldn't defend what she said was the truth when encouraging animal rights groups to get involved regarding an alledged animal abuser and to"like" what was being said. Federal jury awarded $7,500 conpensatory damages for conspiratory and defamation, plus $60,000 in punitive damages, and the federal court trebled the compensatory damages award on the business conspiratory claim. 5000 friends x $20 each but only 12 friends hit the "like" button.

Donald Pennington

Goddamn ignorant, fat-ass bureaucrats have no place in the real world. Don't these fat slobs know that sometimes on Facebook, you have to click "like" in order to comment on a page?

This is proof positive that only the most inept of society ever run for any sort of office.

Goddammit.

Jessica Mendoza

I would most definitely rule for the plaintiff. The ACLU has a great argument that I completely agree with! Liking something expresses your opinion about it. Why else would you click the button, you know it shows others what you like. Its expression, and needs to be protected. Spot on, ACLU.

Jessica Mendoza

This is such a great brief and I couldnt agree more. Everyone knows that when you like something, it shows everyone else what you like. That is what makes it fun to express yourself on facebook. It shows your opinion. Spot on, ACLU.

Anonymouse

I certainly think that a "like" on Facebook should be protected by the first amendment. Expressing something that you like, regardless of whether it's through a social network or not, is a right that is and should be protected by the first amendment. Of course the "clear and present danger" test would still be applicable to a "like" on Facebook and it would make sense for the speech to be limited if it was endangering the country, however, if someone "likes" something on Facebook that is a danger to the company they work for (unless it's related to the government) it would be unconstitutional to fire that person.

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