Is ‘Liking’ on Facebook a right?


By Ken Paulson on

I “like” the First Amendment.

And Bruce Springsteen. And the Chicago White Sox.

In fact, you’ll find my “likes” on Facebook pages devoted to news, sports and music. All along, I’ve believed I was sharing my positive opinion of the people and organizations behind these pages. But now comes a federal court saying that clicking on the “like” button is not free speech after all.

The decision came in a wrongful termination case last month in Hampton, Va., in which former employees of a sheriff contended that they were fired for supporting his political opponent, in one case by “liking” his page on Facebook. A threshold question in the case was whether clicking the “like” button constitutes free expression protected by the Constitution. The court concluded that it doesn’t.

“Merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” Judge Raymond Jackson wrote. “In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.”

In other words, a sentence along the lines of “I like this candidate” would be protected by the First Amendment, but clicking a button that suggests the very same thing would not be.

The judge seemed to be influenced by the simplicity of clicking a button and possibly by the medium itself. Apparently it was hard to recognize the constitutional underpinnings among the personal comments, pet videos and family photos. It’s an unfortunate decision and one that is not likely to stand the test of time or judicial review. At its core are a flawed view of the First Amendment and a lack of respect for emerging media.

Keys to First Amendment

In weighing First Amendment protection, it’s important to remember:

•Communication does not have to be lengthy or difficult to come under the protective umbrella of the First Amendment. A tweet is as protected as a tome.

•Freedom of speech guarantees don’t require express statements or even words. Yes, even mimes are protected by the First Amendment. There are many non-verbal ways to share ideas.

•New media and communication don’t have to evolve into earning First Amendment protection. It’s there from the outset.

Throughout judicial history…

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