In several courtrooms across the country, judges are faced with a decision that could impact almost everyone in the United States that owns a computer, tablet, or smart phone. Is a “like” on Facebook speech? Is your “like” protected? McClatchy’s Michael Doyle reports on cases in Mississippi, Missouri, and Virginia where employees allegedly lost their positions because of a “like”.
Facebook would “like” to have all of our “likes” as well as our comments covered under the umbrella of free speech. In their brief to the Court of Appeals for the Fourth Circuit, Facebook claims that a “like” is the equivalent of posting “a front-yard campaign sign.”
Is Facebook taking the speech claim too far? Is liking a post or picture pure speech subject to the highest level of constitutional protection from encroachment by government? To post a campaign sign on my front yard, I must first obtain a sign and then physically place it in my yard so that it stands upright. Time and care are needed and that facet of posting a sign reflects considered thought and support for the political statement. Is it the same to click the like button (or thumbs up on Youtube)?
I am of two minds on this issue. Given the facts of the cases before the courts, the individual was dismissed from a government post for “liking” posts that were controversial, critical, or supportive of an alternative political candidate. For example, in the case before the 4th Circuit, two employees were fired for backing a rival candidate for sheriff via post and like respectively. In Missouri, two firefighters and a peace officer were suspended because they “liked” a post by a colleague. The offending post was related to a case and critical of the mother of an injured child. The offending post in this instance may not be covered under the First Amendment, but noting agreement with the potentially libelous statement should not be grounds for suspension. Can an employee be sanctioned for buying a local paper that contains an op-ed regarding the same case or endorses a rival candidate? Facebook may be more public and ubiquitous than a newspaper these days, but the actions are similar.
Yet, I am reticent to spread the umbrella of the first amendment to the “like”. I am simply not convinced that the act of liking is similar to any considered act of political commentary. Facebook, again in its brief to the Court of Appeals, notes that there are 3 billion likes daily. It does seem that there is facility to “liking” a post that suggests it may be less than commenting or posting on Facebook in terms of protection, and certainly less than picketing, posting signs, or marching in protest.
If the purpose of free speech is to protect the marketplace of ideas and secure the ability of citizens to criticize their government, then perhaps in the circumstances in these cases, yes the “like” should be protected. And, if a “like” is determined to be speech, the follow-up question of how much protection this speech gets will be quick to follow.
It would seem our classes are a perfect place to discuss and debate both the meaning and gravitas of a “like”. Our students have fully integrated Facebook into their lives and would benefit from understanding the public nature and the breadth of constitutional protection that surrounds the current favorite social media techniques.
*My thanks to Professor Sara Benesh, University of Wisconsin at Milwaukee for pointing me to this set of cases.
 http://www.mcclatchydc.com/2012/09/07/167685/in-facebook-court-cases-high-tech.html last accessed on September 10, 2012.