Is a Facebook Like Protected Under the First Amendment? A Court Says No

A hint at how First Amendment considerations will change as Americans express themselves, increasingly, online

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Shutterstock/Ivelin Radkov

In 2009, Bobby Bland, David Dixon, Robert McCoy, John Sandhofer, and Debra Woodward were employed in the Hampton, Virginia Sheriff's office under B.J. Roberts. In November of that year, Roberts ran for re-election, and Bland and his colleagues, among other moves of subtle insubordination, took to their Facebook accounts to like the campaign of Roberts' opponent, Jim Adams. Roberts ended up winning the election. He then -- having seen those likes -- chose not to retain Bland and the others as employees. Roberts attributed the dismissals both to budgeting needs and to the employees' hindrance of "the harmony and efficiency of the office."

Bland and his fellow ex-employees thought differently, though. They took Roberts to court, arguing that, in the dismissals, he had violated their First Amendment rights.

Last week, the U.S. District Court of Eastern Virginia rendered its verdict, granting Roberts' motion for summary judgment. In its opinion, signed by Judge Raymond Jackson, the Court made a notable distinction: between the kind of speech represented by status updates on Facebook and the "speech" represented by a simple click of a like button. Considering 2011's Gresham v. City of Atlanta and Mattingly v. Millingan -- both cases that pivoted around the Constitutional protections afforded to Facebook posts -- the Bland v. Roberts opinion noted:

These illustrative cases differ markedly from the case at hand in one crucial way: Both Gresham and Mottingly involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter's posts from one click of a button on Adams' Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection.

This is a strange ruling, particularly because a Facebook like, as simplistic as it is, is nothing if not a "substantive statement." Yes, it's heavily mediated and standardized -- it says, "I like this thing right here," and nothing else -- but, still, it's saying something. I am not a lawyer, and all, but the First Amendment -- purposely broad, explicitly hazy -- has never been about the particular vehicles that facilitate expression. So while the like button may well be a facile and blunt instrument of self-expression -- and while, hey, it may well encourage a kind of intellectual/emotional/spiritual laziness -- none of that matters. Freedom of speech isn't about the speech that should be protected; it's about the fact that speech should be protected. Full stop. Nor is it about "speech," per se: It's also about demonstration and protest and assembly and worship and other activities that, silently but powerfully, bring a public face to a private emotion.

So, as the Santa Clara Law professor Eric Goldman points out, Bland v. Roberts is ripe for appeal. And here's hoping that the plaintiffs go for it. Because, as silly as a like button may seem, the legal issues at play here are, actually, important -- and deserving of argumentation and consideration and hashing out. While it seems clear, as a blanket thing, that a Facebook like is speech ... what kind of speech, actually, is it? Should courts follow First Amendment legal precedent and distinguish between likes that are explicitly commercial in their intent -- a like of the Coke brand, say, or of The Atlantic -- and those that are more generalized? (Indeed, is it possible for a like ever to be fully non-commercial on a platform like Facebook?) Does a like of The New York Times, or of NPR, or of The National Review, count as political speech? If so, how? Given that a like is ultimately an expression of affinity with fellow Facebook users, would it be more accurate to think about a click of its button in terms of broader First Amendment guarantees like association, organization, and assembly?

What Bland v. Roberts hints at, in its small way, is something that I think will become a theme in First Amendment law in the years to come: the blurring of lines between forms of protected expression. It used to be that we could distinguish -- messily and awkwardly, but fairly systematically -- among various categories of expression both self- and civic. We could talk about speech and assembly and petition and press as separate, but crucially related, forms of that expression. As our digital social lives become increasingly normalized, though, those divisions are blurring. Online, increasingly, speech is assembly ... and vice versa. Online, increasingly, commercial expression is political expression ... and vice versa. Online, increasingly, the distinctions between expression and action, between political endorsement and commercial, blur together. The lines cross. The categories collapse. As digital platforms give us new ways to communicate and come together -- as they change the dynamic between the individual and the collective, between the private and the public -- they will also, inevitably, change the way we think about expression itself. In the courts, and in the culture at large.