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Is 'Liking' Something Free Speech?

Posted by Josh Rothman  August 9, 2012 03:52 PM

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Here’s a good question: Is ‘liking’ something on Facebook protected as free speech? That question is now before the 4th Circuit of the U.S. Court of Appeals, as Joshua Jouvenal of the Washington Post reports:

Daniel Ray Carter Jr. logged on to Facebook and did what millions do each day: He “liked” a page by clicking the site’s thumbs up icon. The problem was that the page was for a candidate who was challenging his boss, the sheriff of Hampton, Va. That simple mouse click, Carter says, caused the sheriff to fire him from his job as a deputy and put him at the center of an emerging First Amendment debate over the ubiquitous digital seal of approval: Is liking something on Facebook protected free speech?

Facebook and the ACLU (there’s an interesting pair) have both filed briefs in support of Carter’s case:

The interest was sparked by a lower court’s ruling that “liking” a page does not warrant protection because it does not involve “actual statements.” If the ruling is upheld, the ACLU and others worry, a host of Web-based, mouse-click actions, such as re-tweeting (hitting a button to post someone else’s tweet on your Twitter account), won’t be protected as free speech.

My completely amateur-hour take on this is that it’s obviously free speech. It’s true that Facebook, Twitter, et. al. are deliberate in using terminology and imagery which suggest that voting for something online is something less than talking (the icon for ‘liking’ is a thumbs-up, not a megaphone). But even so, the First Amendment protects even the most minimal communicative gestures, like flying a flag or waving a placard. For its part, in its amicus brief, Facebook argues that liking something on Facebook is the “21st-century equivalent of a front-yard campaign sign.” Of course, if there's one thing I learned in my "Constitutional Interpretation" course in college, it's that there's always more than meets the eye when it comes to these kinds of questions.

Read more at the Washington Post.

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