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Monday, April 30, 2012

Constitutional Protected Speech - Facebook "Like" Doesn't Cut It...

A sheriff, Adams, ran for reelection.  Two of his employees, while Adams was still sheriff, "liked" him on his Facebook page.  Later, Roberts, who ran against Adams won.  The two employees were dismissed.  (Full case ruling here.)

The employees sue claiming that Roberts fired them for exercising their right to "free speech" under the Constitution.

The court finds that Facebook "Like" is not free speech.

So is this right?

Is a Facebook "like" equal to a black arm band (Tinker) or burning a flag (Texas v. Johnson)?

In the wired world there's a lot of concern over this.

How can something so ubiquitous as "Like" not be speech?

The court's reasoning was pretty clear:

First of all at issue was only the action of clicking the "Like" button.  Neither plaintiff could show that they actually made statements on the page.

As compared to Tinker where black armbands were worn in protest this is markedly different.  People actually wore the arm bands in a public place.  They physically showed up where others could see them.  And, in the case of Tinker, this was considered "speech."

In this case the plaintiff's couldn't show that they had made any speech - there was no record of any Facebook posts - only the fact that they had clicked the "Like" button.

The court felt that "free speech" had to have substantive content and "will not attempt to infer the actual content of Carter's [plaintiff] posts from one click of a button on Adam's page."

Now I think this is interesting.  Here the court is likening (no pun intended) "Like" to something without substance.  I think a comparable act in the physical world might be a "thumbs up" to fellow students wearing black arm bands.

The physical act of raising your thumb could mean support - and it could mean "get the hell out of my school."

But without additional information (which in the case the plaintiff's failed to provided, i.e., actual Facebook posts) what is the court to do?

Do I really "Like" everything on Facebook I click "Like" for?  Perhaps I am trying to impress a member of the opposite sex so I like what he or she likes to "get noticed."

The court is saying that without more information "Like" means nothing.

It might be like making a quiet statement in a large crowd.  Perhaps I can prove I made a statement but if no one hears it does it deserve Constitutional protection.

Secondly courts don't place as much substance on "Facebook Friends" for good reason.

In Quigley Corp. v. Karkus, 2009 U.S. Dist. Lexis 41296 (May 15, 2009) (see this) involving an issue revolving around whether a corporate board member had fully disclosed relationships the court found that failing to include a specific "Facebook Friend" was not a substantive item.


Because either party can "end" the friendship by merely deleting it through Facebook.

So if the "friendship" is that fleeting is it real?

I think the court rightly says that without other evidence of involvement between the parties no.

And to be clear let's contrast this with explicit Facebook behavior.  In this link the Philadelphia Bar describes how its unethical for a lawyer to use "Facebook" friends via a third party to infiltrate someone's Facebook friends.

Why is this legally different than a "Like?"

Because someone is actively engaging in a subterfuge in which Facebook is used as a tool to extract or gain information that would otherwise not be possible to gather, i.e., Facebook is a communication medium - like a phone.

I can call you on the phone and pretend to be a new neighbor and pump you for information - I can do the same on Facebook - the details of the medium don't matter because the act of subterfuge is the same in either case.

The bottom line, sadly I think for those in love with the digital social world, is that "Like" is not equal to true speech.

While "like" might have value for mining social data about you I don't agree its necessarily protected free speech.  I think that there must be something else involved (personal communications, other meaningful dialogue in some other documented medium such as email).  Only in the context of this does "Like" have meaning.

So what about a "Like" causing you to get hired (or not) as I wrote about in "Can Your 'Social Presence' Get You Hired?"

I think its a bit of a different question.

Outside of a legal context like is more "Like" a choice of a car or clothing.

If you're going down to Social Services to sign up for welfare or you're going to pull out your "Access" card at Walmart its best not to drive down in your Cadillac SUV or Lamborghini.  While you certainly can do that the act of choosing that particular vehicle says something about you none-the-less speaks about you.

Similarly you might not want to apply for that job chaperoning teen dances with "I Like'm Young" tattooed on your forearm.

Clearly you're choice to say or show how you feel but their might be consequence...

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