Facebook ‘Likes’ Command Freedom of Speech Protection

By November 25, 2014

Although clicking on a Facebook ‘like’ button is not actually ‘speech’, this action nevertheless conveys a message that is understood by most people and as such is entitled to full protection under the freedom of speech provisions of the United States Constitution.

The Bland v Roberts case in the United States has become a favourite case study for research into the influence of social networks on working life. An employee claimed to have been dismissed simply for having ‘liked’ and actively supported the election campaign of a candidate running against his own boss, who was the local sheriff. The district court judge ruled in 2012 that in the absence of “sufficient” speech expressing the plaintiff’s political view pertaining to the election, the case could not proceed to trial and the employee was not reinstated. However, that judgement was reversed in May 2013 by the Court of Appeal, which ruled that clicking on the ‘thumbs up’ symbol was constitutionally no different from using a keyboard to type expressions of support and so did in fact qualify for protection under the First Amendment to the US Constitution, which provides protection for personal freedom of expression.

Now Susan Sarapin and Pamela Morris, professors in the Communications faculties at two US universities, have carried out a survey among Facebook users to find out what significance people who regularly use the ‘like’ button attach to the act of clicking, especially whether they view this as expressing an opinion within the meaning of the First Amendment. The results are written up in an article entitled ‘When “Like”- Minded People Click: Facebook Interaction Conventions, the Meaning of “Speech” Online, and Bland v. Roberts’, published in the First Amendment Studies series.

Some 440 people representing a wide variety of positions on the US political spectrum – more than half of whom had ‘liked’ political content in the past – responded to the survey. The most common interpretation given by respondents for a ‘like’ was that it means you ‘agree’, ‘support’, or generally endorse a person, place or idea. Moreover, the explanation given by the Facebook ‘Help Centre’ as to why the ‘like’ button was introduced in the first place, back in 2010, confirms that it is intended to enable FB users to endorse something that has been posted.

In fact survey respondents who see a ‘like’ as a way of supporting a position – which, as a corollary, includes specifically political content – tend to believe most strongly that when they ‘like’ political content their posts are protected by freedom of speech rules. Similarly, those who use ‘likes’ the most are confident that their personal freedom of speech extends to social networking activity. By contrast, those who are more wary of clicking on the ‘like’ button have the most doubts that a ‘like’ can in fact be taken as an expression of a serious political opinion. However, First Amendment experts tend to agree that expressions devoid of political content are not covered by freedom of speech rules.

The authors conclude from their survey of the opinions of a representative sample of the US population that use of the ‘like’ button should be interpreted as actual speech within the meaning of the First Amendment to the Constitution. People see FB ‘likes’ as conveying a strong message of support and it therefore follows that ‘likes’ should be treated in exactly the same way as actual speech, they argue.

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