The First Amendment: Should a Facebook “like” constitute free speech to be protected?
A billion Facebook users generate 2.7 billion “likes” per day equating to 1,875,000 every minute. Increasingly social media has become a form of social and political engagement and 47% of Facebook users have “liked” comments on a political cause they believe in. Protected free speech is a luxury the Western world has long enjoyed. Does clicking the universally understood thumbs-up “like” constitute actual speech? It conveys a message understood by most but should it demand constitutional protection? This article in First Amendment Studies explores legal precedents surrounding this form of communication and surveys Facebook users’ attitudes.
In the case of Bland V. Roberts, an employee was fired for “liking” a campaign lobbying against his boss. The employee claimed the right to free speech but the judge ruled that in the absence of “sufficient” speech the case could not proceed to trial. The employee was not reinstated. In today’s context of morphing methods of communication, is the law not keeping up? An ensuing debate revealed that large numbers concur and felt this judgement would lead to fear and inhibition and deter free expression of ideas and opinions online; the chill factor. Ironically the First Amendment protects symbolic language, even rude gestures such as “the finger”. If it can stretch this far then surely it is not unfeasible to expect coverage for the Facebook thumbs up. The authors developed a study of Facebook users and devised a First Amendment Scale to examine the value of computer source code communication and its relation to free speech.
440 participants took part. More than half had “liked” political content in the past. 4 hypotheses were tested and all proved true; that “like” users most certain of who would see their “like” expected recipients to understand their meaning, those who felt they had sent a message with a “like” are sure that recipients understood. Participants believed when using “like” on political content that their posts were constitutionally protected. Finally those using “like” to convey a message believed that this should be protected by the First Amendment. The most common interpretation for “like” amongst participants was “agree”, “support” and generally to endorse a person, place or idea. Overall participants believed that a “like” is akin to speech as detailed in the First Amendment.
The twist in the tale is that on appeal the Bland V Roberts judgement was reversed, ruling that the thumbs up indeed qualified for protection. As the authors note, “In both offline and online domains, each community of social practice negotiates its own language conventions and creates its own democracy of meaning. The parsing of the First Amendment will continue to be influenced by these communities.” They finish by urging further research on the “chill factor” and its potential negative effect on freedom of speech online.
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