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.