Should a Facebook “like” be protected by the First Amendment? Lawyers from Facebook and the American Civil Liberties Union have teamed up to argue that very point before a federal appeals court after the U.S. District Court of Eastern Virginia ruled against them.
The case is Bland vs. Roberts, and the defendants are facing a predicament that is to become all too common going forward: five former employees of Hampton, Virginia Sheriff B.J. Roberts are claiming that they were fired in 2009 after they “liked” his opponent’s campaign page. Facebook and the ACLU are arguing that a Facebook “like” constitutes freedom of speech, and that firing them based on a “liked” Facebook page is therefore an infringement on their First Amendment rights.
The U.S. District Court of Eastern Virginia’s ruling effectively argued that a Facebook “like” is too simple an action to constitute an act of speech, and that it therefore should not be protected under the First Amendment.
Previous Facebook freedom of speech cases have involved comments on posts, notes written, and other, more extensive statements, so while there exists precedent for upholding First Amendment rights on Facebook, the court is not breaking precedent by denying that protection to a “like.”
Nevertheless, as Arden Fine from the ACLU argued, there shouldn’t be an inherent distinction drawn between posting as a status, “I like Jim Adams,” (Roberts’ opponent in the election) and clicking a “like” button on Jim Adams’ profile. Both are sending the same message, and the fact that the button expedites the process of making that statement doesn’t change the statement itself.
Another point not raised in the case itself, but certainly relevant, is the question of the extent to which our Facebook profiles can be considered tied to our careers. If the five employees had made official speeches as Roberts’ employees that defended Adams, firing them would probably be a no-brainer. If they had talked to friends while off the clock and expressed the same thoughts, though, there would have been no grounds to fire them. A Facebook profile falls into some ambiguous middle ground, a permanent record of our identities that friends and employers alike can view.
I personally hope that the appeals court rules in favor of the defendants, because I see no reason why writing out, “I like this page” should be considered speech when clicking a button that leads to the same message being displayed shouldn’t. Nevertheless, I’m torn on the question of how private a Facebook profile is. If you’ve identified yourself as the employee of a particular politician or company, are your statements in some senses linked to that politician or company?