Does the First Amendment Cover the Right to “Like” Something on Facebook?

The answer to that question is no, at least according to the U.S. District Court for the Eastern District of Virgina, which has ruled that Facebook "likes" do not count as constitutionally protected forms of speech. From the opinion in Bland v. Roberts:

[Previous First Amendment rulings] differ markedly from the case at hand in one crucial way: Both [precedents] involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’ Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection.

At the Volokh Conspiracy, UCLA law professor Eugence Volokh argues that the decision is just flat out wrong:

A Facebook “like” is a means of conveying a message of support for the thing you’re liking. That’s the whole point of the “like” button; that’s what people intend by clicking “like,” and that’s what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the “like” conveyed. I would treat “liking” as verbal expression — though it takes just one mouse-click, it publishes to the world text that says that you like something. But even if it’s just treated as symbolic expression, it is still constitutionally protected, as cases such as Texas v. Johnson (1989) (the flag-burning case) show.

Read Volokh’s full analysis of the decision here.

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  • Hugh Akston||

    So I guess the only question is whether the Circuit Court will call the District judges retarded as part of their overturning this decision.

  • fish||

    I would think that as a matter of law, calling a lower court judge a retard is required under the constitution.

  • ||

    For particularly retarded rulings, an atomic wedgie is also required, with an optional charlie horse.

  • Evil Otto||

    You're letting them off too easy. Menage a trois with Ginsburg and Kagan is the punishment that fits the crime.

  • juris imprudent||

    That explains why Reinhardt likes being overturned so regularly.

  • Enough About Palin||

    EAP likes this

  • Auric Demonocles||

    Like.

  • ||

    which has ruled that Facebook "likes" do count as constitutionally protected forms of speech.

    Wait, what?

  • Proprietist||

    Yeah, the headline's backwards...and this post provides zero relevant background about the case (Some employees for a sheriff's department "liked" the Sheriff's political opponent for reelection on Facebook, and got fired.)

    Pretty awful decision, but if it gets cops fired AND reminds people how corrupt the government is, at least we can take a little solace in the outcomes?

  • AlmightyJB||

  • niobiumstudio||

    They weren't cops - they were civilian employees who were fired "because the Sheriff wanted to make room for more deputies"... There weren't any cops fired - only civilians to make room for MORE cops...

  • The Immaculate Trouser||

    This decision is fucking retarded. *All* language is symbolic; protected political speech includes banners with no words on them.

  • PapayaSF||

    OK, I'm in a sour and contrarian mood now, so I might as well throw some chum in the waters. Of course even someone who works for an elected official has a Constitutional right to free speech, to campaign and vote for whoever they want, etc. But does that really mean that their employee is obligated to continue the employment of someone who is trying to get them defeated in the next election?

  • Sevo||

    "But does that really mean that their employee is obligated to continue the employment of someone who is trying to get them defeated in the next election?"
    Pretty sure 1A isn't about employment law. If you said "screw my employer", the employer should be able to fire you. But you shouldn't be prevented from saying that by the government.

  • Evil Otto||

    You shouldn't be prevented in a coercive way by the government.

    Employment relationships aren't coercive. Unless you want to adopt MNG's philosophy.

  • Auric Demonocles||

    I actually agree with you. But the argument isn't saying that the First Amendment fails to guarantee employment. It's saying that Facebook likes don't count as "good enough" speech to fall under the First.

    The decision to uphold the firings is valid, but the rationale for why is wrong.

  • Jerryskids||

    It's saying that Facebook likes don't count as "good enough" speech to fall under the First.

    It's saying clicking a "Like" button isn't speech at all. Since it is not speech, the court is not going to even get into whether or not the Sheriff improperly fired the employees for exercising their First Amendment rights.

    Which seems to me backward - if the Sheriff fired them for "like-ing" his opponent, the "like-ing" clearly was speech, it clearly did communicate a message to the Sheriff. Given the principle that courts should rule as narrowly as possible, making this a First Amendment issue (about as broad a ruling as it gets) rather than a much narrower issue of whether or not the Sheriff fired the employees for valid reasons having nothing to do with the First makes this an odd ruling.

    Ruling the way they did simply cries out for an appeal to the Supreme Court over whether or not clicking a button is speech.

    So is the district court actually so dense they believe clicking is not speech or are they smart enough to make sure the Supremes make this a final call?

  • niobiumstudio||

    Exactly, the court even found that the Sheriff DID find the "like" but refused to even hear whether that played into the firings because they said "It doesn't count as speech". Stupid, stupid, stupid...

  • Sevo||

    Evil Otto|4.30.12 @ 7:40PM|#
    "You shouldn't be prevented in a coercive way by the government."
    Pretty sure that's redundant. How else could a government prevent an activity?

  • Brandon||

    Papaya, that is the exact reason that public officials are supposed to have, in theory, campaign operations that are distinct from their public "service" operations. The "poor employer" schtick doesn't hold water when you're equating parasites with legitimate employers. If you want to be able to fire someone at your pleasure, then pay them with your own fucking money.

  • Evil Otto||

    If you want to be able to fire someone at your pleasure, then pay them with your own fucking money.

    Most people who make firing decisions in the private sector are not paying them with their own money.

  • Sevo||

    Yes, Mr. Pedant, you're right!
    They're paying them with money the owners entrusted to them to make a profit.
    Thank you for that oh, so valuable insight.

  • SFC B||

    But does that really mean that their employee is obligated to continue the employment of someone who is trying to get them defeated in the next election?

    I'm assuming you meant "employer" where you said employee, because otherwise the sentence doesn't really make much sense.

    If that is the case, then yes, they are obligated to keep the person employed. The Sheriff's Deputies don't work for Sheriff Jim's Sheriff's Office. They work for Some County Sheriff's Office, of which Sheriff Jim is the current elected head.

    I could imagine there being some level of political speech which, while Constitutionally protected, will also get an officer fired (ex: "Sheriff Jim is such a horrible Sheriff I refuse to follow his directions because he's horrible. Vote for Bob for Sheriff!").

    TL;DNR: The Sheriff shouldn't be able to fire deputies for endorsing their opponent because the deputies work for the county, not the Sheriff personally.

  • db||

    Does the First Amendment Cover the Right to "Like" Something on Facebook? Damon W. Root | April 30, 2012

    The answer to that question is no, at least according to the U.S. District Court for the Eastern District of Virgina, which has ruled that Facebook "likes" do not count as constitutionally protected forms of speech


    This?

  • Brandon||

    This is not even the right question. The question they should've been considering is "do the defined and limited exceptions to the first amendment cover "Liking" something on Facebook?" or "Does "Liking" something on Facebook create a clear and present danger?" That these dumb fucks started from the position of "do we have to allow this?" rather than "What is the government's strong, articulable interest in preventing this?" means that they are unfit to be judges.

  • db||

    I agree with you. However, my post was meant to convey another possible case which, under the ruling, was likely not protected speech. Simply adding "this" to another's words could, arguably, fail the judges' test here.

    This is a ridiculous ruling.

  • Sevo||

    "No such statements exist in this case."
    So voting "yes" via whatever electronic means are available is not "substantive"?
    Oh, yeah, "Congress shall make no law... except about short statements".
    Missed that part.

  • SouthernAnCap||

    The Constitution is meant to protect us against the government, not against employers. Employers can hire and fire whomever and for whatever reason.

  • sticks||

    This is a case of gov't employer. As far as I know the 1st applies in those cases more or less.

  • Evil Otto||

    SCOTUS agrees with you. Of course, SCOTUS also thinks igniting vegetable material is interstate commerce and a 3AM no-knock raid based on a junkie affadavit is a reasonable search.

  • Sevo||

    sticks|4.30.12 @ 7:17PM|#
    "This is a case of gov't employer."
    If the paycheck is a government draft, then the supposed 'employer' in this case is nothing other than a department supervisor.
    S/he gets to comply with the rules of the management; the government.
    See Brandon, above at 7:31PM. Want to fire at will? Spend your own money, not mine.

  • Jerryskids||

    I work in an"at-will employment" state. Despite the often-deliberate misrepresentation of this as "your employer can fire you for any reason or no reason at all anytime he wants to", your employer cannot fire you for any reason he wants. Federal and state employment laws still apply - your employer cannot fire you because you are old or black or female, for example. If an employer were to fire you for "no reason" he would be inviting a lawsuit claiming he fired you for an illegal reason. At that point, the employer would have to show that he had some valid reason to fire you. Generally, you will be get a termination notice that tells just why it is you were let go.

    The difference between here and other places is that "because our company is losing money and we need to get rid of some overhead" is considered a valid reason for firing people here. Which irritates the crap out of all those autoworkers who recently moved here from Michigan to work in the new Kia plant. Tell me again why your great $80,000 a year job with union protection there was so much better than your crappy $40,000 a year job without union protection here? Oh, your great job doesn't exist any more because paying high-school drop-outs $80,000 a year to stand at an assembly line and bolt pieces of metal together is not a sustainable business model? Imagine that.

    But I digress.

  • Sevo||

    "But I digress."
    Not so's you'd notice...

  • Brandon||

    So elected officials should be able to fire any employee who doesn't vote for them?

  • Evil Otto||

    No, but that's a matter for the legislature to decide. It's not a first amendment question.

    Do you think a private sector employer should be able to fire any employee who doesn't vote for the employer's favorite candidate?

  • Sevo||

    "Do you think a private sector employer should be able to fire any employee who doesn't vote for the employer's favorite candidate?"
    Yep.

  • niobiumstudio||

    You think an employer should be allowed to violate our amendments? You are essentially saying an employer should be allowed to tell employees "They may not own a gun, in their own free time, even if they don't bring it to work" or that "They are not allowed to get pregnant, because they don't believe in it" or fire someone simply because they are gay. Political speech is free speech, and if the person is NOT acting in a capacity of an employer or on their behalf, the employer should have NO say in what they do.... There is a reason we have rights...

  • Brandon||

    Yes. Private employers should be able to decide how their private property is disposed of. Employees have the right to decide for whom they work. Now,realistically, no employer who fired people for voting the wrong way, getting pregnant or owning guns would be able to attract employees or stay in business very long.

    The reason we have rights is to protect us from the government, not to force other people to employ us regardless of their beliefs. Doing that violates their rights. But you don't really care about rights, do you? Just poorly-understood liberal talking points.

  • Brandon||

    Of course. I also don't think a private sector employer who did that would be in business very long, but that's another question entirely.

  • niobiumstudio||

    So the free market outweighs the bill of rights? The free market should decide when a business entity may violate our constitutionally protected rights?

  • Brandon||

    The Bill of Rights is a list of rights that the government may not violate. It has nothing to do with private employment. Private employment is a contract between two parties, in which either side can make stipulations to which the other can agree or not agree. You are free to walk away from private employment. You are not free to walk away from government.

  • Brandon||

    So elected officials should be able to fire any employee who doesn't vote for them?

  • AlmightyJB||

    Dislike

  • db||

    Your post is not eligible for First Amendment protection. NEEDS MOAR SUBSTANTIALNESS.

  • AlmightyJB||

    So all of H&R is unprotected? scary.

  • db||

    Questions are not eligible for First Amendment protection. Only declarative statements in support of the current administration are afforded coverage.

  • Auric Demonocles||

    Poor Socrates.

  • Incredulous||

    "It is not the kind of substantive statement that has previously warranted constitutional protection."

    There they go just making shit up again.

    I guess in the "liberal" judge's alternative universe the First Amendment reads:

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances UNLESS SAID SPEECH IS DEEMED UNSUBSTANTIVE OR IS BY A CORPORATION OR ANYTHING ELSE WE FUCKING DREAM UP."

  • Sevo||

    Uh, you need to go back and read the article and the comments. No KORPORATIOOOON involved.
    I'm going with (as presented before) the ruling is right; the reason is bogus.

  • niobiumstudio||

    Regardless if you thought the sheriff was right, they didn't even consider whether he was right because they stated that "Liking" is NOT free speech. Regardless what your view about what the sheriff can and can't do, you really think that expressing your likes/dislikes SHOUDLN'T be protected speech?

  • Jason Ervin||

    I do understand what the judge is speaking about in terms of the "meaning" of a Facebook "like". Sometimes we "like" a post in order to follow it, to get updates on it when someone comments on the post. Other times we "like" a post to show support of a person, but no necessarily the literal quote in the post. Hitting the "like" button on Facebook is too vague to be categorized as speech in my opinion, unless it is qualified by a comment.

  • Auric Demonocles||

    You don't get to determine what someone else means when they speak.

    Furthermore, if the sheriff fired them in response for it, it clearly conveyed a message to him. That's the whole point of speech.

  • Brandon||

    "Hitting the "like" button on Facebook is too vague to be categorized as speech in my opinion, unless it is qualified by a comment."

    Your opinion is an idiot.

  • ant1sthenes||

    So, vague speech isn't speech? If the government punishes you for a vaguely dismissive grunt, the first amendment doesn't apply?

  • ||

    OK So I "liked" this to Facebook as a totally ironic gesture.

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