Bland v. Roberts has been watched closely, and for good reason. It's obvious that First Amendment freedoms extend to the Internet. It's more obvious still that the expressions and discussions that happen to be mediated through fiber-optic cables are precisely the kind of thing Mr. Madison and his merry band of misfits envisioned when they went out of their way to write the Bill of Rights as extensively as they did. So courts have, in the past, granted First Amendment protection to written posts on Facebook, as Judge Raymond Jackson pointed out in his initial ruling. Which is both appropriate and unremarkable, and precisely how the Bill of Rights was meant to work: Its protections expand to accommodate new times and new technologies.
But all the obviousness is obvious only insofar as the conduct carried out on digital platforms has been directly analogous to the protections laid out in the First Amendment: speech, assembly, press, religion, petition. The question Bland v. Roberts really explores is the extent to which digitally mediated expressions are, indeed, expressions in the same way that petitioning and pamphleteering and, yes, speech-making are. In the case of the Like button, does a form of expression so devoid of creativity on the part of the expresser -- to click or not to click -- deserve protection?
Judge Jackson's answer was no. When he dismissed the suit last year, he did so under the logic that First Amendment freedoms may be extended only to "substantive statements" -- to digital speech in the strictest sense of the term.
The appeals court's decision reverses that, widening the definition of speech to include, yep, the click of a button. Simple signals of intention and reaction -- the most individually uncreative forms of expression imaginable -- are now enshrined as constitutionally protected conduits of self-expression.
That's a good thing -- and not from the perspective of "Like as speech," necessarily, but from the perspective of "Like as assembly." Clicking a Like button, after all, has less to do with self-expression and more to do with expression that is, implicitly, communal: It is, as an analogy to the modes of expression that existed in 1791, more akin to taking part in a rally or a protest or any other public gathering.
And that's what makes Bland v. Roberts so interesting as a matter of legal precedent: It hints at the creative collapse of First Amendment protections, at the merging of speech and assembly and petition and press into a singular digital activity. It hints at the way our new digital environments are imposing themselves onto some of the oldest assumptions of our legal system. When the Founders wrote the Bill of Rights, expression -- in all its forms -- was mediated by physicality. Crowds assembled in town squares; religion took place, generally, within churches; expression via a press required, literally, a press. Digital affordances eviscerate those divisions, giving us one place -- one Internet -- to do our speaking and meeting and protesting and petitioning.