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Court Rules Facebook “Like” Is Not Protected By The First Amendment

Submitted by on May 6, 2012 – 1:47 pm2 Comments

A federal court ruled this week that “liking” something on Facebook is not protected speech under the first amendment of the Constitution. But critics are saying that this is just another step in the struggle to reconcile law, civil rights, and new technologies.

The U.S. District Court for the Eastern District of Virginia made the ruling as part of Bland v. Roberts, which is basically a wrongful termination lawsuit. Several employees (civilian and non-civilian) of the Hampton, VA Sheriff’s Office were fired after supporting the election campaign of one of Sheriff B.J. Roberts opponents. Court documents say this included “liking” the opponent’s Facebook page, and it seems this relates to only one of the six plaintiffs.

Roberts says he terminated the employees for a number of reasons, including budget cuts, unsatisfactory work performance, and that their actions “hindered the harmony and efficiency of the Office.”

The judge declared that “liking” was not similar to other legal precedents involving statements made on Facebook, saying that no “actual statement” is made by clicking the “like” button.

Critics say that this is reducing free speech to a matter of effort. The LA Times writes:

“The key question is, is the act of ‘liking’ something of Facebook, does that express an opinion or thought,” said Aden Fine, senior staff attorney for the American Civil Liberties Union in an interview with The Times. “It certainly does. The mere fact that you’re pressing a button to express that view or opinion instead of saying those words doesn’t make a difference.”

Helen A.S. Popkin of MSNBC’s Technolog wrote that Jeff Hermes, director of the Digital Media Law Project, Berkman Center for Internet & Society, told her, “The judge was essentially devaluing the ‘like’ as speech because of how simple it is to do.”

In another venue, the National Labor Relations Board (NLRB) has ruled in labor disputes that speech critical of a workplace and superiors is protected only if it is part of a “concerted activity” to improve conditions (i.e. not just random griping). The plaintiffs in Bland leveled some pretty serious accusations of misconduct against the sheriff, and a political campaign seems like a pretty “concerted activity” to me; but I don’t know if there’s any precedent on protections for actively trying to get your boss defeated.

What do you think? Is a Facebook “like” protected speech?

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