FB Like Button Ruling In District Court
District Judge Raymond A. Jackson ruled that a Facebook “Like” is not constitutionally protected speech under the First Amendment. Several Sheriff’s deputies contend retaliatory firing after they clicked the “Like” button for a political opponent’s Facebook page.
The First Amendment grants freedom from government persecution to individuals on the basis of speech. The unanimous Supreme Court decision in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) extended the full protection of the First Amendment to the Internet. Several courts have also held Facebook posts to constitute speech (e.g.Mattingly v. Milligan, 2011 WL 5184283, (E.D. Ark. Nov. 1, 2011) andGresham v. City of Atlanta, No. 1:10-CV-1301-RWS-ECS, 2011 WL 4601022, (N.D. Ga. Aug. 29, 2011)).
The court distinguishes Facebook comments from the “Like” button, stating that the “Like” button lacks any substantive statement. The court finds it improper to assume one who clicks the “Like” button made some specific statement without evidence of such statement and therefore is not sufficient speech to garner First Amendment protection.
I simply disagree with this finding and have a hard time believing that this court has ever voluntarily explored the series of tubes that we call the Internet. I understand that a click of a button, without context, provides very little substantive data to determine whether First Amendment protections should apply. A click of a pen is probably not a substantive statement while a click of ballot box is fully protected. Small gestures are often provided with the highest levels of protection, such as a black arm band, a political pin, and even a rude hand gesture. The court commits a grave error in determining the constitutional protection of a gesture that it so poorly understands.