On Friday, the Chicago Tribune posted an AP article by Brock Vergakis about a recent federal court decision as to whether “liking” a page on Facebook constitutes free speech. In brief, employees “liked” a competitor’s Facebook page. The employer (a sheriff running for re-election) fired them. Fired employees sue. Plaintiff’s claim, paraphrased? “Our first amendment rights have been violated.”
Now, as anyone who reads even a little of my occasional screed knows, I’m a huge fan of free speech. I love that I live in a nation where I am free to say or express whatever comes to mind within certain reasonable bounds. I can’t reasonably shout “Fire!” in a crowded theatre unless I have a good reason for thinking there’s really a fire. I can’t libel or slander. I can’t incite violence unless I’m really cagey about it and pretend to be a patriotic American by wearing a tea bag hanging from my Halloween costume. Other than that, I’m free to express myself. By expressing myself, I mean I am free to signify something.
Judging from the context of the article, that’s certainly the position of the six fired employees and their counsel. It also appears to be the opinion of Marcus Messner, a journalism and mass communications professor at Virginia Commonwealth University:
“Going to a candidate’s Facebook page and liking it in my view is a political statement. It’s not a very deep one, but you’re making a statement when you like a person’s Facebook page,” Messner said.
Eugene Volokh, a law professor at the University of California at Los Angeles, along the same lines:
In an interview, Volokh said while a “like” could be ambiguous, there’s no question it counts as speech. A thumbs-up gesture is symbolic expression protected by the First Amendment, for instance, and “liking” something on Facebook is even more clearly expressive because it generates text on a computer screen, he said.
“It is conveying a message to others. It may just involve just a couple of mouse clicks, or maybe just one mouse click, but the point of that mouse click, a major point of that mouse click, is to inform others that you like whatever that means,” he said.
Don Herzog, a law professor at the University of Michigan, more ambiguously weighs in, stating that:
…Jackson’s ruling raises questions about the power of the government to determine what should be taken seriously in politics when it comes to protected speech.
“It is for sure a thin statement, but it is clearly within what we do all the time as democratic citizens,” Herzog said. “This is one of the ways we talk about politics in our society.”
Vergakis himself, either on his own or paraphrasing from someone else without attribution, likens liking a page on Facebook to putting a bumper sticker on a car or wearing a button.
For the opposition, Vergakis cites Sheriff Roberts’ position on the matter (plausible deniability, as I read it), and, naturally, U.S. District Judge Raymond Jackson’s.
“The court will not attempt to infer the actual content of Carter’s post from one click of a button on Adams’ Facebook page,” Jackson wrote.
Emil Protalinski at ZDNet took up the matter more from the cover-your-ass privacy perspective. He also shared the tidbit that it was Ars Technica that broke the story. Now we’re getting somewhere! Ars Technica will likely have some solid analysis.
Venkat Balasubramani and Eric Goldman do indeed do a far more thorough analysis. For one (as with the ZDNet article), there’s actually a link to the Memorandum Opinion and Order from Judge Jackson. Maybe AP writers don’t feel the need to go to such great depth? MSM outlets like the Chicago Tribune that just rubber stamp AP content in lieu of supporting their own stable of journalists certainly seem happy to endorse this kind of laziness, but I digress. Balasubramani also does us the courtesy of block quoting a bit more extensively from Judge Jackson, which certainly helps put AP writer Vergakis’ paraphrases in a clearer context:
[Roberts'] knowledge of the posts only becomes relevant if the court finds the activity of liking a Facebook page to be constitutionally protected. It is the court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.
The rest of the Ars Technica analysis can be summed up in a few more quotes.
[T]he court veered off course in concluding that a Facebook like is not speech. Maybe the court slept through Arab Spring and the many other instances of online activism in the past five years. Maybe the court is unaware of the robust body of First Amendment precedent which says that protection for expression is not limited to just actual words. Hello, Tinker (black arm bands) and Texas v. Johnson (flag burning)! … As menial as a Facebook like may be in the overall scheme of life, it’s an announcement to your Facebook friends that you support something, whether it’s a cause, a candidate, a company, or another person.
Eric Goldman goes a bit further in his interpretation of the Facebook “Like” thusly:
When John Doe “likes” something on Facebook, it means:
- When other people visit that content item/page, John Doe publicly appears as someone who “likes” it.
- In addition, some folks are privately notified that John Doe “likes” the item/page, such as the person who posted the item/page as well as other people who are referenced on the page.
- Depending on John Doe’s privacy settings, John Doe’s “like” may be communicated to his friends via his newsfeed.
- If John Doe likes a business/interest, it may appear on John Doe’s info/profile page.
- If John Doe likes a business or ad, the business or advertiser may be able to buy an ad that redisplays John Doe’s “like” to John Doe’s friends.
- Under the hood, Facebook treats the “like” as an affinity that modifies Facebook’s perception of the relationship between liker and likee (i.e., it changes the social graph).
I “like” Venkat’s assessment above that “liking” on Facebook is First Amendment-protected speech. Looking at the complete list of implications above, collectively there is no question about that. But even if we focus only on implication #1, I don’t even see the First Amendment issue as a close question. Listing a person’s name as an endorser of a political candidate is core First Amendment activity. That’s exactly what the “likes” did here.
Balasubramani and Goldman do appear to be heavy-hitters. After all, Balasubramani is “a lawyer and the cofounder of a boutique law firm focused on media, technology, and Internet clients” and Goldman is an associate professor of Law at Santa Clara University School of Law and directs that school’s High Tech Law Institute. All’s well and good in the world, so now I can just rest easy and go with my knee-jerk reaction that Judge Jackson is, indeed, just royally wrong.
Not so fast.
Embedded in this tangle of paraphrases, quotes, and analysis is a running stream of assumptions to the effect of “Liking a page on Facebook means X.” Well, what about Y? Or Z? What about possible offline analogs to the Like button other than bumper stickers and lapel pins?
Case in point: I “Like” Denny Rehberg’s page on Facebook. What, exactly, can be inferred from the physical action of clicking that Like button? If I were to place a Rehberg bumper sticker on my truck or were to wear a campaign t-shirt, I think it’s generally safe to say I’d be signifying support. While it’s remotely possible there may be other explanations for those actions, those explanations may be a bit more of a stretch. Maybe I had some unsightly rust on my bumper and the only convenient thing at hand to cover it was a Rehberg sticker. Maybe I’m late on laundry and the only thing clean I have left to wear is from my pile of yard-work shirts that I buy by the bag from the thrift store with no regard for what is emblazoned on them. Placing a sticker on a bumper serves a purpose. Wearing a t-shirt serves a purpose. In both cases, the message and the purpose seem fairly closely aligned.
But is that necessarily the case with the Facebook Like? Goldman does a rather detailed breakdown of the significance of the Like, all in the context of Facebook’s choice of the word “like” for a button with certain not always clearly defined functions. He lists many of those functions, whether they be the intent of the “liker” or merely Facebook by-products. However, he misses at least one, the very reason I “Like” Denny Rehberg.
By clicking that button, I avail myself of the convenience of having Rehberg’s social media communications via Facebook added directly to my Facebook news feed. I also follow @RepPaulRyan on Twitter (along with a huge list of other political asshats) for much the same reason. Facebook and Twitter can call the “functionality” button anything they please. It could be the Spleeb button on one and the Plork button on the other. I don’t care. The buttons may serve multiple functions. I don’t care. What I care about is the one function of convenient access to information made available to me by the simple action of clicking a button. Inferring, ad nauseam, that a Facebook “Like” actually connotes liking is tantamount to inferring that a Twitter “Follow” connotes discipleship.
Given my own experience and interpretation, as much as I would love to hop on the First Amendment bandwagon I’m just going to have to go with Judge Jackson on this one. The act of a click is just not enough on which to base an inference of the intended “speech,” especially when the word on the button that activates functionality is chosen by marketing pros at profit-driven corporations for the purpose of inducing people to use it when it could just as well say, in long form, “Help us connect you with our revenue streams so we can make money at the expense of your privacy.” Or “Click here to add to your feed.”