In April, U.S. District Judge Raymond A. Jackson in the case of Bland v. Roberts ruled that Shreiff B.J. Roberts had the right to fire six employees for "Liking" his opponent's Facebook Campaign page. This week the social media Facebook itself entered the legal battle arguing that the "Like" button is a form of speech and therefore protected by the First Amendment freedom of speech.
Judge Jackson, however, disagrees, "Simply liking a Facebook page ... is not the kind of substantive statement that has previously warranted constitutional protection," according to the National Constitutional Center. The judge ruled that since the "Like" button is not a written comment or post, the constitutional right to free speech does not protect it.
But what about implied speech? The Facebook "Like" button implies opinion, and is symbolic just like the burning of the flag or wearing a black arm band. And Facebook as well as the American Civil Liberties Union agreed. Facebook joined the legal battle by filing a amicus curiae on Monday.
In its brief, the social media site claims that "The district court reached a contrary conclusion based on an apparent misunderstanding of the way Facebook works; the resulting decision clashes with decades of precedent and bedrock First Amendment principles," Yahoo News.
But the judge says that there is a uniqueness in the case that draws a distinction between the freedom of speech of a civilian and a public servant. In order to ascertain this, Judge Jackson applied a three-part test founded in the case of McVey v. Stacy in 1998. According to the judge going by the McVey test, the plaintiffs failed at proving the first part i.e. demonstrating whether they were speaking on a matter of public concern as a public employee or a personal opinion/ interest as a civilian.
"Plaintiffs Carter, McCoy, and Woodward have not sufficiently alleged that they engaged in expressive speech, and Plaintiff Dixon has not proven that his alleged speech touched upon a matter of public concern. Therefore, these Plaintiffs' claims fail as a matter of law," Jackson said according to the National Constitutional Center.
"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," Jackson added.
Facebook released a statement to website Tech Radar voicing strong opinion that the "Like" sign is a matter of free speech. "The Supreme Court has made clear that the First Amendment protects everyone's right to express their thoughts and opinions in whatever form they choose to do so, whether it's speaking on a street corner, holding up a sign, or pressing a button on Facebook to say that you 'Like' something," (www.techradar.com).
It's been established a long time ago that the constitutional right to freedom of speech is not limited to the literal definition of speech. The concept of discerning pure speech and conduct speech began in the 1940s. In various cases which involved flag-burning (Street v. New York, 1969), wearing certain symbols and signs to convey an opinion (The black arm bands case of Tinker v. DesMoines Independent Community School District,1969), the Supreme Court established that speech was more than a spoken or written word, but also included non-verbal expressions, gestures to communicate a particular message.
The age of the Internet has further complicated the meaning and extent of the First Amendment privileges, the Internet has provided a new kind of 'marketplace of ideas' which has confused courts on how to deal with issues of free speech as pertaining to the web-world.
The case of Bland v. Roberts might take the discourse to the higher court. Social media sites like Facebook, Twitter, Tumblr et al. all have in stake in the course of expanding or rather defending free speech on the internet.
Facebook announced that it will up lobbying for the cause in Capital Hill, according to the Politico the social media site will be channeling as much as $1.6 million into lobbying to "explaining how our service works...The actions we take to protect the more than 900 million people who use our service, the importance of preserving an open Internet and the value of innovation to our economy," as reported by the National Constitutional Center.
