May 2, 2012 at 6:39 PM ET
A ruling by a Virginiadistrict court last week doesn't directly impact how most of us use Facebook,but it could. Like so many open questions about the Internet and free speech, we canexpect similar court cases for years to come. According to the court's opinion in Bland v.Roberts 2012, clicking the Facebook's "Like" button isn't"sufficient speech to garner First Amendment protection."
The case in question came before the U.S. District Courtof Eastern Virginia after B.J. Roberts of the Hampton, Va. Sheriff's Departmentfired five employees following his successful reelection in 2009. Budgetreasons, unsatisfactory work performance and hindrance of "the harmony andefficiency of the office" were the reasons Roberts gave for letting themgo. The fired employees said otherwise.
In taking their case to court, the plaintiffs -- Bobby Bland, David Dixon,Robert McCoy, John Sandhofer and Debra Woodward -- said they were dismissed because before the election, they each "Liked" the Facebook campaign pageof Roberts' opponent, Jim Adams. Yet, in a decision that flummoxes digital law scholars, thecourt decided that whether or not Roberts knew his employees "Liked" the campaign page of his political opponent, their "Likes" still weren't considered free speech:
[Roberts'] knowledge of the posts only becomes relevant ifthe court finds the activity of liking a Facebook page to be constitutionallyprotected. It is the court’s conclusion that merely "liking" aFacebook page is insufficient speech to merit constitutional protection. Incases where courts have found that constitutional speech protections extendedto Facebook posts, actual statements existed within the record.
"It's a somewhat odd decision that a Facebook "Like"is not protected speech," Jeff Hermes, director of the Digital Media Law Project,Berkman Center for Internet & Society told me. "The judge was essentiallydevaluing the 'Like' as speech because of how simple it is to do."
With Facebook so ingrained in our daily lives, many of us no doubt click "Like" for stories or products or status updates without givingit much thought. Historically however, even simple actions around free speech have been protectedunder the First Amendment, Hermes said, noting the off-cited Tinker V. Des Moines Independent CommunitySchool District 1969. In that case, theSupreme Court upheld the First Amendment rights of three public school students who were suspended forwearing black arm bands to school in protest of the Vietnam War. "It was avery simple activity that courts recognize as expressive," Hermes said.
The American Civil Liberites Union brought the Tinker casebefore the courts, and in similar fashion, the civil rights organization hassomething to say about the same principle behind a simple Facebook "Like." In apost on the ruling, Aden Fine of the ACLU's Speech, Privacy and TechnologyProject writes:
It is hard to understand howrevealing to the world that you “like” a particular political candidate doesnot reveal one’s views or express an opinion. It does exactly that. That manypeople today choose to convey what they like or which political candidates theysupport by “liking” a web page rather than by writing the actual words, “I likethis web page” or “I like this candidate,” does not matter, either from apractical or a legal perspective. Whether you press a “like” button to expressthose thoughts or you press the buttons on a keyboard to write out thosephysical words, the end result is the same: you are telling the world aboutyour personal beliefs and interests. That is exactly what the First Amendmentprotects, however that information is conveyed.
If it's not overturned, could Bland v. Roberts haunt Facebook and free speech rulings somewheredown the road? As a district court decision, the case doesn't set a binding precedent, Hermes told me. But it could be cited in similar cases as an example of how othercourts have ruled.
Either way, Hermes agreed that this isn't the last we'll hear ofsuch cases. "As this kind of expression becomes more common, we'llcontinue to see cases on exactly what we think of 'Likes' as opinions protected under the First Amendment."