Does Clicking the “Like” Button Equal Constitutionally-Protected Speech?
One of the definitive features of Social Media, and arguably the most contagious, is the ability to express one’s approval and share that with others by clicking “like,” friending, following, pinning or mentioning, among many others. However, unlike other issues that have dealt with the murky area of postings on social networks such as Facebook, there is no explicit guidance on whether some or all of such action merits any constitutional protection. So, although clicking the “like” button on Facebook seems like a relatively clear way to express your support for something, it doesn’t follow that it is constitutionally protected speech. As with most of the legal issues raised by Social Media, a recent case provided visibility to the issue but little in the way of guidance.
Exactly what a “like” means — if anything — was the focus of a Virginia case involving six people who claimed they lost their jobs because they supported their boss’ political opponent in his 2009 re-election bid, which he won. One of the plaintiffs had gone to the political opponent’s Facebook page and clicked the “like” button. The workers sued, saying their First Amendment rights were violated.
Yesterday, a U.S. District Court Judge in Virginia ruled that clicking the “like” button does not amount to expressive speech. In other words, it’s not the same as actually writing out a message and posting it on the site. Marcus Messner, a journalism and mass communications professor at Virginia Commonwealth University who specializes in social media had this to say: “[g]oing 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.”
Unfortunately, legal issues remain. Expressing one’s political views is a definitive feature of American democratic society. However, in this case, the judge did not rule that this manifestation of one’s opinion was constitutionally protected speech.