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Facebook demands First Amendment protection for the like button

August 8, 2012 by Scott Bomboy


Does the First Amendment protect you from liking the wrong person on Facebook? That’s the argument going on in a federal court, after a judge said a sheriff had the right to fire his employees for liking his opponent’s Facebook campaign page.

The case of Bland v Roberts has picked up steam since April, when U.S. District Judge Raymond A. Jackson ruled against the six former employees of the sheriff, B.J. Roberts.

And it got a lot more publicity this week when Facebook decided to jump into the legal fight.

In general, non-government workers are afforded fewer constitutional protections, particularly when it comes to freedom of speech, compared to government workers, who enjoy more protection under the law since they can speak on matters of “public concern.”

In April, a federal judge ruled that a person clicking a Facebook like button doesn't have First Amendment protection, because no words are associated with clicking the like button.

“Simply liking a Facebook page … is not the kind of substantive statement that has previously warranted constitutional protection,” said Judge Raymond Jackson in April, who serves in the U.S. District Court for the Eastern District of Virginia.

Jackson said in his ruling that a Facebook post or a comment--where words were written--was protected under the First Amendment, but not hitting the like button for a personal page or a profile page.

Since then, the American Civil Liberties Union has become involved in the case, and Facebook filed its amicus curiae legal brief on Monday.

Facebook’s brief states that Jackson, 62, just doesn’t understand the world of social media. It also cites the First Amendment 23 times in the 26-page brief.

“The district court reached a contrary conclusion based on an apparent misunderstanding of the way Facebook works; the resulting decision clashes with decades of precedent and bedrock First Amendment principles,” Facebook said in its brief.

In his ruling, Jackson said that the plaintiffs needed to prove free speech existed under the McVey test, a three-part test based on the case of McVey v. Stacy in 1998.

Jackson said the plaintiffs flunked the first question on the test: whether a public employee was speaking as a citizen upon a matter of public concern or as an employee about a personal matter of personal interest.

“Plaintiffs Carter, McCoy, and Woodward have not sufficiently alleged that they engaged in expressive speech, and Plaintiff Dixon has not proven that his alleged speech touched upon a matter of public concern. Therefore, these Plaintiffs' claims fail as a matter of law,” Jackson said.

“It is the Court's conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record,” Jackson added.

A New York Times article in May said Sheriff Roberts doesn’t use Facebook. Also, Facebook’s public directory doesn’t list a Raymond Alvin Jackson as an active member (which would be unlikely, given the judge’s public office).

In a statement to the website Tech Radar, the ACLU said Facebook likes are cases of free speech.

"The Supreme Court has made clear that the First Amendment protects everyone's right to express their thoughts and opinions in whatever form they choose to do so, whether it's speaking on a street corner, holding up a sign, or pressing a button on Facebook to say that you 'Like' something," the ACLU's Aden Fine told TechRadar.

The Bland v Roberts case could be headed to a higher court, as the justice system attempts to define the rules of conduct in the age of Facebook, Twitter, YouTube, and Instagram. The current average age for a U.S. Supreme Court justice is 66.3 years of age.

But Facebook could also try a different tactic, one that was employed successfully by America Online and other online services in the 1990s.

As the Clinton administration and Congress started to define the legal underpinnings of the fledgling online industry, AOL and others lobbied successfully for laws that protected what were then called “online service providers” from crippling legal issues.

One law, the Digital Millennium Copyright Act of 1998, limited the liability of websites from copyright issues through rules that allows online services to remove copyright-protected content without punishment.

A second law, section 230 of the Communications Decency Act of 1996, said websites and online services aren’t legally responsible for the actions of users, including defamatory comments.

Those two rulings, experts say, established the Internet as a viable business and laid the foundation for Facebook, Twitter, and YouTube.

Politico says Facebook is stepping up its lobbying efforts in Washington, spending $1.6 million in lobbying efforts on the Hill in the past year.

"Our presence and growth in Washington reflect our commitment to explaining how our service works,” a Facebook spokesman told Politico in late July. “The actions we take to protect the more than 900 million people who use our service, the importance of preserving an open Internet and the value of innovation to our economy."

Google, Microsoft, Apple ,and Amazon also have significant lobbying efforts in Washington.

In itss own brief, the ACLU said the precedent of punishing employees for Facebook activity related to politics could establish a chilling trend.

“Merely because ‘Liking’ requires only a click of a button does not mean that it does not warrant First Amendment protection. Nor does the fact that many people today choose to convey their personal and political views online, via Facebook and other social media tools, affect the inquiry,” the brief reads.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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