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U.S. Judge's Facebook Ruling Gets Thumbs Down From Legal Scholars

"It is the court's conclusion," the judge wrote, "that merely 'liking' a Facebook page is insufficient speech to merit constitutional protection."
Across cultures, giving something a "thumbs up" or "thumbs down" has long been understood to be a silent "yes" or "no."

It's a gesture whose meaning is instantly clear, which is why a Facebook tool that allows users to identify posts they "like" makes use of the "thumbs up" icon.

Essentially, with the click of a mouse, Facebook users can highlight their interest in a photograph, a video, an article, or a comment made by another person.

But that simple click has become somewhat risky after U.S. District Judge Raymond Jackson in the state of Virginia ruled that clicking Facebook's "like" button doesn't qualify as protected speech under the U.S. Constitution's First Amendment clause.

Legal scholars are giving that ruling a "thumbs down."

"The key issue here is whether by pressing a button to say that you 'like' something on Facebook, you're expressing an opinion or a thought. And I think you clearly are," says Aden Fine, senior staff attorney for the American Civil Liberty Union's (ACLU) Speech, Privacy, and Technology Project.

"The mere fact that you're pressing a 'like' button, as opposed to pressing buttons on your keyboard to type out the words, 'I like candidate X,' doesn't make a difference," Fine continues. "You're telling the world, 'I like this particular candidate,' and that's clearly protected by the First Amendment."

Workers Sent Packing

The ruling came out of a lawsuit filed by employees of a sheriff's office who said they were fired from their jobs for supporting their boss's political opponent during an election. Central to the case was that one of the workers had clicked "like" on the opponent's Facebook page.

The sheriff won reelection and sent the workers packing for what he said was unsatisfactory work performance and disrupting "the harmony and efficiency of the office."
Other courts -- including the U.S. Supreme Court -- have recognized that even very simple acts can be highly expressive.
Jeff Hermes, Harvard University

In his ruling, the judge wrote that the sheriff's knowledge of the post "only becomes relevant if the court finds the activity of 'liking' a Facebook page to be constitutionally protected. It is the court's conclusion that merely 'liking' a Facebook page is insufficient speech to merit constitutional protection."

With that ruling, says Jeff Hermes, who directs the Digital Media Law Project at the Berkman Center for Internet & Society at Harvard University, the judge was effectively saying that if you use your own words you're sending a constitutionally protected message, but that if you click "like" to say the same thing, you're adopting somebody's else's speech, which means it's not protected.

"To my mind, that's not a proper analysis," Hermes says. "What appears to have happened here was that the judge was rejecting speech because of how simple it was to do. However, other courts -- including the U.S. Supreme Court -- have recognized that even very simple acts can be highly expressive. That includes such things as signing a petition, which is just signing your name, not choosing any words. You're adopting somebody else's language. But you sign the petition, and that expresses your support for the subject of the petition."

Hermes points out that the Supreme Court has also ruled that flag burning is protected speech, as well as the wearing of a black armband as a symbol of protest.

Diverse Online Universe

There are fewer legal precedents concerning protected online speech, but the high court has issued at least one major ruling in that area. At issue was the Federal Communications Indecency Act, which sought to censor certain online content, such as sexually explicit websites. All nine justices agreed that it was a violation of the First Amendment.

That decision, the ACLU's Fine says, cleared the way for the Internet to grow into the incredibly diverse online universe that it is today.

"The United States Supreme Court unanimously held that speech on the Internet was entitled to the exact same protection as all other traditional forms of speech," Fine says. "That was a landmark decision and really paved the way for all of these new technologies and new ways of communicating that we all use every day."

Fine admits that the writers of the U.S. Constitution in the late 1700s didn't know that people would one day communicate in a virtual world by clicking a button.

"That's not what the First Amendment has traditionally protected," he says. "There isn't a lot of case law on that."

But he adds, "That doesn't mean that using the 'like' button isn't entitled to First Amendment protection. I think this is an example where the new technology, unfortunately, may not be that familiar to this judge."

Legal observers say the case is an excellent candidate for appeal.