‘Liking’ Free Speech Can be Difficult for Some, Including Federal Judges

by Jeremy Leaming

Expression whether made through the written word or symbolic act regardless of its eloquence, coherence or brevity is a cherished right and usually protected from government meddling.

But some state and federal court judges can be flummoxed by expression made via a form they simply are not comfortable or familiar with, and issue rulings moored in flimsy findings of law.  

For example, in spring U.S. District Judge Raymond Jackson found that “liking” a candidate’s Facebook page was not expression worthy of protection pursuant to the First Amendment. A Virginia sheriff seeking reelection had fired some of his staff after he learned they supported his opponent through various means, such as “liking” the opponent’s Facebook page.  

Judge Jackson ruled that the Virginia sheriff’s action of firing the employees did not violate their First Amendment rights, writing that, “Merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” The judged added that “where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.”

The employees, not convinced by the judge’s understanding of expression or scope of the First Amendment, have asked the U.S. Court of Appeals for the Fourth Circuit to reverse Jackson.

The ACLU and Facebook joined the cause, lodging separate friend-of-the-court briefs arguing that the employees’ “likes,” were indeed expressions, ones that likely cost them their jobs.

In its court brief, Facebook says that Judge Jackson’s ruling reveals a “misunderstanding of the nature of the communication at issue and disregards well-settled Supreme Court and Fourth Circuit precedent. Liking a Facebook Page (or other website) is core speech: it is a statement that will be viewed by a small group of Facebook Friends or by a vast community of online users.”

Facebook went on to note that had the sheriff’s staffer “stood on a street corner” and proclaimed his support for the sheriff’s opponent there be would be “no dispute” that the such action was protected by the First Amendment. But Facebook in its brief says that is exactly what the fired staffer and now defendant in the case, Daniel Ray Carter, Jr., did.

“Carter made that very statement: the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection,” the Facebook brief states.

In its brief, the ACLU blasts Jackson’s opinion as “erroneous,” saying that using the “liking” Facebook function “expresses a clear message – one recognized by millions of Facebook users and non-Facebook users – and is both pure speech and symbolic expression that warrants constitutional protection. Although it requires only a computer mouse, a Facebook ‘Like’ publishes text that literally states that the user likes something.”

ACLU staff attorney Aden Fine also lauded Facebook for supporting its users’ free speech rights.

If history is any indicator the courts will eventually see Facebook’s “likes” for what they are -- quick, fleeting actions of expression. The ways in which we communicate are not static and never have been; instead they are ever-changing and sometimes confounding and elusive. So it is not surprising, just frustrating that some courts take a bit of time to catch up.     

[image via Kevin Krejci]