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Monday, May 07, 2012

When Saying You "Like" Something Isn't Speech

From Steve Jamar (Howard), posting on the Con Law profs' listserv, and Eugene Volokh, comes news of a district court opinion concluding that "liking" a candidate's Facebook page doesn't constitute speech. Bland, et al. v. Roberts, (E.D. Va. Apr. 24, 2012).  It seems as though some civilian employees of a sheriff's department "liked" the Facebook page of the sheriff's opponent in the upcoming election; after the sheriff was re-elected he decided not to retain those employees, as well as several others.  A group of dismissed employees, including the ones who "liked" the opponents' Facebook page, sued, alleging a violation of their First Amendment rights.

The district court granted summary judgment against the plaintiffs whose speech consisted of the Facebook "like," on the ground that "merely 'liking' a Facebook page is insufficient speech to merit constitutional protection."  According to the court, "[s]imply liking a Facebook page is insufficient.  It is not the kind of substantive statement that has previously warranted constitutional protection."

I'm with Eugene and the listserv contributors who think this is pretty clearly wrong; even if it's not precise, there is clearly expression -- indeed, pure speech -- in telling the world that one "likes" or "dislikes" a particular Facebook page, even if that act simply adds to the number of total "likes" or "dislikes."  It's obviously hazardous to extrapolate from one opinion, but I wonder if the district court's analysis speaks to the problems that lurk when speech takes place via new technology that doesn't map with complete ease onto old templates.  Even as I write that I have my doubts -- "liking" a Facebook page (especially with the "thumb's up" icon) seems pretty straightforwardly speech.  Is this just a case of a single judge misunderstanding technology?  If so, it will be easy enough for the Fourth Circuit to reverse.  Maybe this is an example of the beneficial effect of multi-judge appellate panels: perhaps their multi-judge characteristic will reveal what seems clear enough to a lot of professors -- that this really is speech.

Posted by Bill Araiza on May 7, 2012 at 06:36 AM | Permalink

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Comments

I'm going to assume that Bill and Howard are correct, and that this is a case of (one specific) judge being confused by the technology. I say this because, only somewhat sardonically, I am deeply concerned if there exists a cognizable theory under which "liking" - an act clearly expressing an opinion - does not constitute protected speech.

Posted by: David Thaw | May 8, 2012 3:44:35 AM

Even leaving the technological confusion aside, I'm tempted (very tentatively) by the idea that the court should have treated the qurstion of the expressive content here as a question of fact, rather than law, and concluded that a jury could infer that the plaintiff was saying *something* from the Sheriff's reaction. This case may be a reductio of the notion that courts can find that something was, in the court's words, "a substantive statement" as a matter of law in general; a notion that seems to defy the way that language works, i.e., as a convention constructed from the expectations of those who are communicating, per David Lewis's theory, and thus susceptible to evidence about what the people were thinking. (But now I've slipped into writing a law review article in a blog comment. Maybe I should just add that claim to the 'ole research agenda instead, heh.)

Slightly non sequitur question: how do I get on that listserv, now that I'm a brand new con law prof?

Posted by: Paul Gowder | May 7, 2012 11:40:49 AM

I started to write about this case and my thought was that the judge was blinded by technology. There would have been no doubt of expressive nature if the plaintiff had given a physical "thumbs up" if he saw a person holding the same sign on the street. Or if the plaintiff had honked his horn if he saw the same sign on the street. But put it in the technological realm and judges start to get confused, even if the appropriate analogy is rather obvious.

Posted by: Howard Wasserman | May 7, 2012 7:22:28 AM

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