Is Hitting a “Like” button on Facebook page constitutionally
protected speech?
(written for PIPSELF Blog )
Liking a political candidate,
cause, or consumer product on a Facebook page should constitute protected
speech under the First Amendment. Interpreting
the First Amendment’s “freedom of speech” clause, the Supreme Court has held
that the ability to criticize government and government officers is “the
central meaning of the First Amendment.” [1]
At the same time, the Court has declared
that other forms of speech and expression are protected by the First Amendment.[2]
Government employees should not get
fired for liking or supporting a particular political candidate on a Facebook
page.
In April 2012, a court ruling by
the Eastern District of Virginia in Bland v. Roberts stirred a lot of
controversy.[3] In Bland, several state employees of
the Sheriff’s Department in the City of Hampton, Virginia, were fired for
liking a Facebook page of a political candidate who ran against the Sheriff in
his bid for reelection.[4] The fired employees sued the Sheriff for
violation of their First Amendment rights to speech.[5]
The district court granted summary
judgment in favor of the defendant based on the ground that “liking” a Facebook
page is “insufficient speech” and not “substantive” enough to guarantee
constitutional protection.[6] The court here applied
a three-prong test laid out in McVey v. Stacy.[7]
Under the McVey test, to identify whether a public employee has stated a claim
under the First Amendment for retaliatory discharge, we must determine (1)
whether the public employee was speaking as a citizen upon a matter of public
concern or as an employee about a personal matter of personal interest; (2)
whether the employee’s interest in speaking upon the matter of public concern
outweighed the government’s interest in providing effective and efficient
services to the public; and (3) whether the employee’s speech was a substantial
factor in the employee’s termination decision.[8] In Bland, after stating that “[t]he
first prong of the McVey test
necessarily require[d] that speech exist[ed] before an evaluation of the
remaining prongs [could] occur,” the district court held that the plaintiffs did not “sufficiently”
allege engaging in “expressive speech.” [9]
I believe the district court came
to an erroneous conclusion in the instant case: “liking” someone on Facebook
should warrant constitutional protections. Clicking a “Like” button on a Facebook page
involves an act of volition and judgment.
This button is not clicked to proceed to a next page or to navigate back
as it happens when users almost automatically and habitually click “OK”, “Cancel”,
and “Back” buttons in Internet browsers and Microsoft Windows applications. Clicking a “Like” button requires deliberation
and contemplation on part of a user: it is not a mere, insubstantial act of
browsing and navigation between pages on the Internet. Clicking a “Like” button triggers a whole
chain of events. First, an announcement
is posted on the user’s personal page proclaiming the fact that he likes,
supports, endorses, or enjoys the “liked” page and his entire network of
friends gets notified about his action. Secondly,
his click of a “Like” button comes with consequences. Now, various advertisements will populate on
the individual’s screens that are similar to the product he or she “liked.” This demonstrates that hitting a “Like”
button on Facebook is not a mere navigational feature on the Internet; but
rather a firm and concrete statement of expression that should be protected by
the First Amendment. In fact, hitting a
“Like” button is analogous to posting a flag outside someone’s door.[10]
Further, the law has not kept up with emerging Internet
technologies and their constitutional consequences. However, we are not left completely in the
dark. We certainly have some guidance on
this novel issue. For instance, a recent
holding in Fraley v. Facebook,[11]
provides a persuasive authority on this matter.
In Fraley, the Court held that “Liking” things on Facebook is
“newsworthy.”[12] This decision stands contrary to the district
court ruling in Bland where the court held that “liking” someone’s
Facebook page is not an expressive speech or conduct. Moreover, in a
2011 United States Supreme Court ruling, Justice Scalia stated that “[l]ike the
protected books, plays, and movies that preceded them, video games communicate ideas – and even social
messages.”[13] We can view Justice Scalia’s quote on video
games as dicta for the novel issue at hand.
Analogous to video games, some social networking activities, such as “liking”
or supporting someone, should be viewed as vehicles that communicate ideas and
social and political messages. Thus, a social
networking activity that conveys a message or statement such as “liking” a
political candidate’s Facebook page should be protected under the First
Amendment of the United States Constitution because it is just someone’s way of
expressing his/her freedom of speech.
After
an adverse ruling by the district court in Bland, the plaintiffs have filed
an appeal. Furthermore, in August 2012, two
third-party organizations -- Facebook, Inc. and ACLU -- submitted their individual
briefs as amicus curiae in support of
the plaintiffs-appellants on the issue of whether or not liking someone on
Facebook constituted a form of protected speech under the First Amendment.
Certainly
Facebook, Inc. has a substantial business interest in this matter: it does not
wish its users to be limited and restricted in their online activities. This social networking giant also does not
want to lose its advertising revenues it generates every time a user hits a “Like”
button. Contrary to the district court
ruling, Facebook contends that every time a user hits a “Like” button, it
becomes a “statement that will be viewed by a small group of Facebook friends
or by a vast community of online users.” [14]
A
nationwide, nonprofit organization ACLU which “has been committed to protecting
the freedoms guaranteed by the First Amendment” viewed the district court
holding in Bland as an “unduly restrictive view of constitutionally
protected speech.” [15] ACLU asserts that “’Liking’ a political
candidate on Facebook – just like holding a campaign sign – is constitutionally
protected speech.” [16] ACLU further contends that hitting a “Like”
button is “verbal expression, as well as symbolic expression.”[17]
Based
on the little precedent we have on this novel issue involving social media and
freedom of speech, I expect the Fourth Circuit will reverse the district court
on this point and find that ‘liking’ a political candidate, cause, or product
should warrant the First Amendment protection.
[1] New
York Times v. Sullivan, 376 U.S. 254, 273 (1964).
[2] Times,
Inc. v. Hill, 385 U.S. 374, 388 (1967).
[3] Bland
v. Roberts, 857 F.Supp.2d 599, 601 (E.D. Va. 2012).
[4] Id.
at 601.
[5] Id.
at 602.
[6] Id.
at 603.
[7] McVey
v. Stacy, 157 F.3d 271, 277 (4th Cir.1998).
[8] Id.
at 277-278.
[9] Bland, 857
F.Supp.2d at 603.
[10] See Texas v . Johnson, 491 U.S. 397 (1989)
(holding that a communicative conduct such as flag burning is constitutionally
protected form of speech).
[11] Fraley
v. Facebook , 830 F. Supp. 2d 785, 804-05 (N.D. Cal. 2011)
[12] Id.
[13] Brown v. Entm’t Merch. Ass’n, 131 S.Ct. 2729, 2733 (2011).
[14] Brief for Facebook, Inc. as Amici Curae Supporting
Plaintiff-Appellant, Bland v. Roberts, 2012 WL 1428198 (2012) (No. 12-1671).
[15] Brief for ACLU et al. as Amici Curae Supporting
Plaintiffs-Appellants, Bland v. Roberts, 2012 WL 1428198 (2012) (No. 12-1671),
2012 WL 3191380.
[16] Id.
[17] Id.