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While the First Amendment protects most statements you make, “liking” something on Facebook does not constitute protected speech. This April, Judge Jackson of the U.S. District Court in Norfolk, Virginia, ruled that clicking the Facebook “Like” button is not protected under the First Amendment. In that case, a deputy sheriff, Daniel Ray Carter, lost his job after he “Liked” his boss’ rival in the approaching election for sheriff. After his boss won reelection, he fired Carter. So Carter brought the case to court. The judge dismissed the case, ruling that clicking the “Like” button was not protected speech.
Now, Facebook and the American Civil Liberties Union have filed Amicus Curiae briefs in appeal of the judges’s ruling. The ACLU argues that when someone presses buttons on a keyboard, the end result is the same as one expressing those thoughts by writing out the words or stating them out loud. Either way, one is telling the world about one’s personal beliefs, interests, and opinions. Facebook is similarly arguing that “If Carter had stood on a street corner and announced, ‘I like Jim Adams for Hampton sheriff,’ there would be no dispute that his statement was constitutionally protected speech.”
The arguments against a “Like” being considered free speech involve the ambiguity of such actions in the social media world. It is difficult to equate such actions with protected statements under the First Amendment. The judge believed that merely “liking” a Facebook page is insufficient speech to merit constitutional protection, as it does not necessarily imply any substantive statement.
Nevertheless, it is uncertain whether speech needs to be articulate in order to qualify for First Amendment protection. The plaintiffs in this case seem to have alleged a violation of free speech, and the case should not have been dismissed without a jury trial. Because speech and expression have now migrated to the social media platform, courts must ensure that this new public space provides sufficient protection.
– Marina Visan
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