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Does the First Amendment Provide Protection for Facebook “Likes”? A Federal Judge Wrongly Says No

Facebook estimates its monthly active users at 845 million people, and its daily active users at 483 million.  One important result of Facebook’s having all those users is that a great deal of First Amendment activity that previously would have occurred in the brick-and-mortar real world, now takes place online instead.  Rather than complimenting a friend in person, we “Like” her post or photo online.  And, on the darker side, rather than insulting someone in person, we may deride—or simply disagree with—him on Facebook instead.

That is exactly what happened in a case that was recently heard in federal court in Virginia, as I will discuss in this column.

The Facts and Holding of the Case

In an April 24 decision, Judge Raymond A. Jackson of the U.S. District Court for the Eastern District of Virginia held that clicking on the “Like” icon on Facebook is not First Amendment-protected speech.  The case arose when four deputy sheriffs and two civilian employees who worked in a sheriff’s office supported the current sheriff’s opponent in an election for that post.  One way that each employee showed his or her support was to “Like” the sheriff’s opponent’s Facebook page.  Surely, the sheriff also—and quite reasonably—interpreted their “Likes” as a vote of no confidence for him.

When the current sheriff was re-elected, he fired all six of the employees who had used the “Like” icon to support his opponent, along with six other employees.  The six fired employees who had clicked on the opponent’s “Like” icon then brought suit against the sheriff, claiming that he had violated their First Amendment rights to speech and association when he fired them.

Although the employees contended that their firings were illegal on a number of alternative grounds as well, in this column I will focus on the question whether their use of the “Like” icon was covered by the First Amendment.  Judge Jackson held that it was not, and gave three reasons why—each of which, in my view, is unpersuasive.

Judge Jackson’s First Rationale

Judge Jackson’s first rationale for his holding was that “In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.”  But that fact, if true, simply means that Judge Jackson was facing a case of first impression, and thus would need to make new law—something judges do all the time, by relying on analogies to cases that are somewhat similar to the case at bar.  Rather than cutting against the plaintiffs’ arguments, this statement simply suggests that the judge had his work cut out for him.

Judge Jackson’s Second Rationale

Judge Jackson’s second rationale for his holding was that clicking on the “Like” icon is “not the kind of substantive statement that has previously warranted constitutional protection.”  Yet it takes only the tiniest analytic step to translate the act of clicking on the “Like” button into the words “I like,” which do, quite obviously, constitute a substantive statement.

Granted, there are cases where it might be ambiguous what, exactly is being “Liked” on Facebook.  Should a person who “likes” an entire page be taken to express his or her endorsement of every statement or photo on that page?

I would generally say no, but I would also understand a judge’s opposite holding in certain cases—say, in the case of a page that predominantly endorsed terrorism, but also mentioned a few other topics, or one that mingled highly defamatory material with a few innocuous photos of kittens.  This case, though, did not raise that kind of ambiguity.

Judge Jackson’s Third Rationale

Finally, Judge Jackson’s third rationale for his holding was that it would be improper to try to infer the specific statements that the defendants’ clicks on the “Like” icon were making.

If this were a defamation case, that might be a reasonable point to raise—one that would cut in favor of the defamation defendant and in favor of the First Amendment, for it is difficult for a statement to be both vague and truly defamatory. (Also, vague statements usually wreak less damage, unless they convey very powerful insinuations.)

But this case wasn’t a defamation case.  It was a case about whether employees could legally be fired for First Amendment-related speech, and in that context, the judge’s refusal to interpret what the “Likes” meant unfairly cut not just against the plaintiffs, but also against free speech itself.

Again, to interpret the “Likes” as meaning “I like” was not a very difficult task.  By comparison, the Supreme Court has repeatedly interpreted the meaning of purely symbolic speech—that is, speech involving no words all.  To do so, the Court looks to context, circumstance and history.

Its decisions in this area touch on symbolic speech ranging from flag-burning (Texas v. Johnson), to cross-burning (R.A.V. v. City of St. Paul), to draft-card burning (United States v. O’Brien), to armband-wearing (Tinker v. Des Moines). In addition, in the “Bong Hits 4 Jesus” case, known more formally as Morse v. Frederick, the Supreme Court did not balk at all when it came to interpreting the words “Bong Hits 4 Jesus” on a banner that a student had raised at an off-campus school event.  Specifically, the majority opinion in Morse described the message on the banner as “reasonably viewed as promoting illegal drug use.”

As an aside, I disagree with the majority’s interpretation of the banner in Morse.  A banner saying “Bong Hits Now” would have conveyed the pro-drug message the Court described, but that’s not what the banner said.  The actual banner message, “Bong Hits 4 Jesus” was clearly a goof—perhaps one that is best read as a clumsy satire of all the things that Christian believers are asked to do in the name of Jesus.  (A sincere banner to that effect might have said something like “Give to the Poor for Jesus,” and it’s that kind of banner that was implicitly being satirized by the “Bong Hits 4 Jesus” banner.)

But the key point, for purposes of this column, is that, in Morse, the Supreme Court did not balk at giving an interpretation of the banner just because the banner was hard to interpret.  Instead, the Morse Court realized that it was its job to figure out, to the best of its ability, what the banner’s cryptic statement meant.  The judge in the “Likes” case had the same obligation.

A federal judge has great power, but he or she also has a weighty obligation: the obligation to decide.  Punting on the question of how the “Likes” were to be interpreted meant that the judge in the “Likes” case failed to live up to that obligation.

Julie HildenJulie Hilden, a Justia columnist, graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for over a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read... a work of art." Her website’s address is www.juliehilden.com.
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11 Responses to Does the First Amendment Provide Protection for Facebook “Likes”? A Federal Judge Wrongly Says No

  1. Angela Noel says:

    When sharing this article with my Facebook friends, I commented, “Ahhh Snap.” I assume that all of my friends and, you know, anyone born after 1980, will understand my statement, but I suppose the test now is whether some unsavvy judge in Virginia understands its meaning. I’m truly distraught over the implications this case has on my favorite comeback–”So’s your face”–which, as we all know, applies to every situation but can sometimes be ambiguous: To the judge who claims that “Like” is too ambiguous to be free speech, I say, “So’s your face.”

  2. Dawn 35 says:

    i believe just because you push the like button doesnt neccisarily mean you like everybit of content in what ever it is you hit the like button for. i hit like on some comments or some pages for what some of the stuff says it doesnt mean i like EVERYTHING. i think that hitting the like button is like the first admendment that is the freedom of speech whether it be on the entire contents of a page or comment we have or we are suppose to have the freedom to say what we do and dont like. so in my opinion and for the first admendment i believe the judge was WROOOOOOOOOOONG in his desicion. yes i said they judge was WROOOOOOOOOOOONG so are you going to put me on trial now for my first admendment right?

  3. What a waste of superior intellect!

  4. Baylor1988 says:

    I’m not a lawyer but I think the more important point is that none of the 6 was denied the right to express their view.  They expressed it with their “like.”  The ensuing consequence of job loss is simply the consequence of exercising their freedom.  They have not been imprisoned, fined or in any penalized under the law for their actions.  Their employer has viewed their opinion as inconsistent with productive employment and exercised his right and terminated them in light of their opinions.  This all seems to be freedom at its best.

    • Seriously? says:

      That’s the
      biggest load of horse crap, I have heard in a while, Baylor! Their opinion has
      no direct connection to the ability to perform their Job properly. So, should
      their opinion determine their employment status, unless it has a direct impact
      on performance? HELL NO!

      Knowing the
      consequence of termination,  in fact,  influences their decision to speak freely and
      has the direct effect to deny the right to express their legitimate
      “like”. However, as they did not know the consequences and were
      terminated for speaking their opinion, it essentially constitutes a form of
      discrimination, which is what this case should have been about, in my opinion.

      Saying,
      “Their employer has viewed their opinion as inconsistent with productive
      employment and exercised his right and terminated them in light of their
      opinions.” is just like saying, “Because you like someone and it
      differs with my opinion, you don’t deserve to work here and you’re
      fired.”, which is discriminatory in nature.

      A peace officer
      who would discriminate based on something like this makes me wonder what else he
      would discriminate against???

    • Ozzy says:

       I have to agree with Baylor1988, and the argument is summed up best in the last sentence:  “This all seems to be freedom at its best.”  The employer should be free to hire and fire as he or she likes. 

    • Darkreich says:

       Or pettiness at its worst.

  5. facebook-1269186709 says:

    I am reading this not as a “Like” button issue, but can an employee be fired for political affiliation?  Now, as a group, what happened to the other 6 that got fired.  It is hard to make a case that the 6 got fired for “liking” the opponents page, when there were 12 people fired.  It could have been performance related, and just coincidental that they all happened to express their views the way that they did.

  6. Montford greenwood says:

    I disagree with your statements about bong hits 4 Jesus.  Why would you think that in his day Jesus was not a marijuana user 1. @e0e7e0897ef94689364f7891950c5841:disqus  The freedom to assemble and protests is not specified in the Constitution as having any boundaries shy of the Constitution itself. Therefore the right to assemble and protest are one right and the right to religious worship as one sees fit is another right trampled upon. Just because you have your own stance against this supposed drug doesn’t mean you can have your cake and eat it to.  
    Now for the case at hand. The word freedom is implied in our Constitution at many points. Look up the definition. These people were not treated fairly under our founding documents and, this case can be used to coerce others. Coercion is NOT freedom. Now this prick has the ability to point to this ridiculous judges ruling and cite precedent and trap his workers in a kind of mental oppression. Disagreeing with the boss or liking another persons sentiments counter the bosses are likely to get you fired.
    Welcome to the USSA comrade.  

  7. Deneicy says:

    I have clicked LIKE for candidates or political officials or issues that I DISAGREED with for the purpose of commenting.

  8. Brushman09 says:

    In addition to thenon-pursuasive aspects of the statements, the next step is to apply his (the judge) rationale to the “Like” inference. If it doesn’t constitute protected speech, then using the same logic, what grounds did the Sherrif have to use the “Like” icon to fire the employees? If the legal system isn’t allowed to make a legal inference to the use of the icon, then the Sherrif is therefore also disallowed from making an inference with the icon. You can’t have it both ways…

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