Should Facebook Likes Be Considered Free Speech?

Should “liking” a page on Facebook be protected by the first Amendment?  A recent court case has raised this question.  A sheriff’s office employee in Virginia sued his employer after he was fired for liking the Facebook Page of his employer’s competitor and election opponent. (You can read about the details here.)

A U.S. District Court Judge concluded that his case was not valid because Facebook likes don’t constitute speech.  He explained that there’s a difference between liking something and “actual statements on the record.”  In other words, the court ruled that clicking a button isn’t equivalent to speech. It’s not about the nature of the content, it’s about quantity.

Facebook actually came out in support of the fired employee and issued a statement disagreeing with the judge, arguing that a Facebook like is a type of speech:  “It generates verbal statements and communicative imagery on the user’s profile (or timeline) page – i.e., a statement that the user likes a particular page, accompanied by the page’s icon – as well as similar statements and imagery in the news feeds of the user’s friends.”

This case sheds light on a challenge our judicial system will continue to face as our communication becomes increasingly digital: interpreting a constitutional right that was drafted hundreds of years ago for a modern language system that looks very different from the quill and ink medium used to draw it up.

But here’s a scary thought: A Facebook like might be the dominant form of speech (or the closest thing to self-expression) for many Americans every day.  They “Like” pages and posts to convey a number of ideas — Congratulations! That’s funny! I get it! I want to buy this.  I want to participate in this.

This case raises questions about the nature of all online sharing and whether it can be considered speech.  We express ourselves online by copying and quoting: retweets, mentions, and shares.  But if we’re not actually saying or writing any original content, just repurposing someone else’s words or showing support for an idea with one non-verbal click, are we actually creating speech?  

I’ve written before about how we use language on Facebook and Twitter and, as much as I adore both of those mediums, I do worry that the ease with which we can quote and share opinions makes us less likely to formulate our own.  We miss the opportunity to think critically when we Like or quote without analyzing or, at the very least, paraphrasing.

If we categorize Likes as protected speech, will it further legitimize Facebook as a form of expression?  Will it encourage people to mindlessly Like before considering the information they’re actually spreading?  Or does the content we generate, however passively, deserve to be protected by our first amendment rights?  Tweet me @rikki_rogers with your ideas.