The issue of whether the Facebook “like” button constitutes free speech has recently garnered a tremendous amount of attention. The American Civil Liberties Unit (ACLU), Facebook, and a U.S. District Judge have all weighed in on the relationship (or lack thereof) between the like button and the First Amendment to the U.S. Constitution. This case has multiple dimensions, but as it relates to the Facebook like button, here is the primary issue at stake:
Six individuals were employed in the Hampton, Virginia, Sheriff’s Office. The Sheriff, B.J. Roberts, was slated for reelection in 2009; the six employees supported Roberts’ opponent and were fired when Roberts won reelection. Roberts stated that he let these employees go because of budget reasons, unsatisfactory work performance, and the fact that they disrupted the “harmony and efficiency of the office.” However, the employees state that they were let go because of their endorsement of Roberts’ opponent. One of these individuals named Daniel Carter liked Roberts’ opponent on Facebook, and claims that this action is not grounds for being let go from his position, because his Facebook like is protected by the First Amendment right to free speech.
The case went before the U.S. District Court of Eastern Virginia. Here are a few direct quotes from the original ruling by U.S. District Judge Raymond Jackson:
It is the Court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection.
It is not the kind of substantive statement that has previously warranted constitutional protection.
The bottom line according to Judge Jackson: the mere click of the iconic “thumbs-up” button doesn’t make enough of a statement to stand for free speech. Facebook posts can warrant First Amendment protection, because they involve actual statements; a like, on the other hand, doesn’t have enough substance or weight to fall under the free-speech aegis.
Legal Jargon, Latin, and Law and Order
Carter’s legal team did what all good district attorneys on Law and Order: SVU promise to do when an episode ends bleakly with the convicted being found innocent: they appealed. The case is now before the U.S. Court of Appeals for the 4th Circuit.
Not surprisingly, Facebook and the ACLU are all over this issue the way Dr. George Huang is all over any case that involves some highly contentious, controversial psychological condition. Facebook and the ACLU both issued amicus briefs, which for those of you like me whose knowledge of the law extends to the legal jargon ADA Alex Cabot or Casey Novak spew before judges when they’re trying to contest a cockamamie motion to suppress, is when someone who is not a party to a case volunteers to offer information to assist a court in deciding the case.
In the brief, Facebook contests that the district court just simply doesn’t understand how the Facebook like button works. The Facebook like is the “21st-century equivalent of a front-yard campaign sign,” because it’s not just about clicking a button. It directly communicates beliefs, thoughts, and opinions because it generates verbal statements and imagery. Keeping with the legal theme, if I like the page for the TNT show The Closer on Facebook, a statement that I like the page along with the page’s icon (say, a shot of Kyra Sedgwick) will appear on my friends news feed and on my personal profile. In the zeitgeist, people express their support for political candidates through liking Facebook pages, much like people put a bumper sticker on their car or place a campaign sign in their yard (both of these actions are protected by the First Amendment). According to Facebook, it doesn’t matter that Daniel Carter did not craft a post endorsing his candidate of choice, because the like button is in fact substantive and sufficient.
Use Your Words
Clearly, the key issue in this case is: what is enough to warrant free speech? Do people have to post a status update specifically stating, “I like ______ candidate?” According to Judge Raymond Jackson they do, but isn’t that the same as pressing the like button?
There is a Latin phrase, facta non verba, that means “deeds, not words”, also known as “actions speak louder than words.” The district court ruling turns this common idiom on its head, because apparently words (a Facebook post) are louder than actions (a click of the like button).
When I first heard about this case, I initially sided with Facebook, but after reading the ruling and the amicus brief, I realized that the case actually has a few complexities. I wanted to scrutinize the Facebook like as it relates to political candidates. And, because the Facebook like button is symbolic of contemporary technology and modes of communication, I also wanted to discern whether social media has changed our ideas of political speech.
The Modern Day “I Like Ike” Button
We’ve actually been “liking” political candidates for decades; the only thing that has shifted is the method we use to express our likes. Before everyone and Matt Lauer’s plaid jacket had a social media account, these “I Like Ike” buttons were all the rage in the 1952 presidential election.
I would argue that the Facebook like button and the “I Like Ike Button” are identical. They’re both public endorsements of political candidates. If I lived in the era of the Rosenbergs, Senator Joseph McCarthy, and the Korean War, I would proudly wear an “I Like Ike” button to let everyone know I was voting for Dwight D. Eisenhower. Because I live in the era defined by iPhones and hyper-connectivity, I like a candidate on Facebook, whether it’s a presidential candidate, a senatorial candidate, or one of my local representatives, to let people know that I support said candidate and/or to stay up-to-date on that candidate. In years gone by, I might wear a button as a sign of endorsement; now, I push a button to articulate the same sentiment.
I think one of the issues in this case is the fact that the simplicity of the like button disguises the meaning behind it. The like button seems simplistic, and pressing it is effortless. Hence, the district court ruling that it is not a substantive statement. However, just because there is not a great deal of effort involved in using the like button, that doesn’t mean that there isn’t a good deal of thought and motivation that goes into pressing it. I like various news sources on Facebook, such as Rock Center with Brian Williams and The Huffington Post, and sometimes, I will see stories on my newsfeed on political issues about which I have a strong opinion. I rarely comment on these stories, mainly because I know no one from The Huffington Post or NBC will read my comment; instead, I like them. My like is replete with meaning, even though it took me half a second and no effort to push the button. The same thing would hold if I were to like a political candidate.
I recently wrote a post in which I deconstructed the Facebook like, and contrary to my initial impressions, pressing the like button is meaningful: people press it for very specific reasons. It’s a form of expression, much like typing out a post is.
Politicians, People, and Pressing Like
The Facebook amicus brief argues that the like button is an expression of a user’s opinions and thoughts. People press like and endorse an individual or a specific viewpoint. That’s the way Facebook works. And I think that many people espouse this view. In fact, when it comes to politicians’ Facebook pages, more people like posts than comment on them. I looked at the pages of various politicians whose names have become household names, and here’s what I found:
On all Facebook pages, the percentage of people who comment on posts is very small. Consider Barack Obama. Obama has 27.7 million likes on Facebook. I perused his page over the last several months and found that the most comments any one post generated was 74,552. This means that at most, only 0.27% of Obama’s Facebook fans will comment on a post. Most posts have 10-20x as many likes as they do comments.
On Mitt Romney’s Facebook page, in the best case scenario, only 0.57% of fans comment on a post. Ron Paul’s Facebook page has better numbers, but even then, the post that generated the most engagement prompted only 0.34% of fans to comment.
The fact that less than 1% of people comment on politicians’ Facebook pages suggests that liking something is the common, collective way of voicing approval, support, or endorsement.
One Big Social Media Mess
I found a post on The Facebook Blog written in February 2009, when the like button first debuted. Here is an excerpt from the post:
We’ve just introduced an easy way to tell friends that you like what they’re sharing on Facebook with one easy click. Wherever you can add a comment on your friends’ content, you’ll also have the option to click “Like” to tell your friends exactly that: “I like this.”
According to Facebook, clicking like and saying “I like ____.” are identical, which somewhat discredits the district court ruling. To complicate matters even further, when I or one of my friends likes something on Facebook, a statement appears in the news feed, like this one:
Facebook’s argument is on point: a like generates a statement—symbolically and also literally. Also, if the Appeals Court finds that the like button is not free speech, this could make matters very messy for all political opinions expressed via social media. Where would we draw the line between a “substantive statement” and a non-substantive statement? Consider Twitter. If I retweet this:
is this type of speech not protected by the First Amendment because all I did was press the retweet button (which I would argue is the Twitter equivalent of the like button) rather than typing out “I support Senator Kirsten Gillibrand’s effort to stem the flow of illegal guns and raise the minimum wage”? (Actually, that far surpasses 140 characters, so I might be better off just tweeting something like, “Kirsten Gillibrand #guncontrol #raisetheminimumwage”) But wouldn’t the retweet be more powerful of a political statement even though all I did was click a button?
A Page with Eight Likes
The amount of people weighing on this case is greater than the amount of people that enthusiastically waited for a romance to begin between Olivia Benson and Elliot Stabler (all of whom were crushingly disappointed when Stabler disappeared and the attractive, perp-catching, constitutional-right stretching duo as we knew them ceased to exist).
Until the ruling, I’ll leave you with this piece of information that is especially humorous in light of the case at hand. The Facebook page for the Hampton Sheriff’s Office is shockingly short on likes! They currently have eight. Yes, eight. Anyone else think it’s ironic that an office that has spawned a case that questions whether one of the most universally recognized social media symbols of our time represents core political speech is virtually devoid of likes?
I just hope the Hampton, Virginia, Sheriff’s office doesn’t have a habit of pushing the limits of the Constitution like they do over at the 16th precinct in Manhattan.
And, by the way, the Detective Elliot Stabler Facebook page has 8,676 likes.