Thumbs Up: Facebook “Like” Case Shows Judges Can Get Technology Right

Facebook speech can be more powerful than IRL speech.

Photo by aaron tam/AFP/Getty Images

This week a federal appeals court in Virginia handed down an important decision in a much-watched free speech case. The novel question before the court: Is clicking the “like” button on Facebook, protected First Amendment speech?

The case arose out of a lawsuit brought by six former employees of the Hampton, Va., sheriff’s office, all of whom claimed their free association rights were violated when they were dismissed for supporting his opponent in an upcoming election One of them, Daniel Ray Carter Jr., also claimed he was fired for hitting “like” on the campaign page of his boss’ opponent. In 2012, Judge Raymond Jackson of the Eastern District of Virginia threw out the suit, finding that hitting the “like” button did not represent an actual “substantive statement” protected by the First Amendment. Even though other courts have found that Facebook posts are constitutionally protected speech, the lower court judge drew a line between actual words and statements, writing that “the court [would] not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’ Facebook page.”

Facebook and the American Civil Liberties Union weighed in on the appeal, filing briefs on Carter’s behalf in the 4th U.S. Court of Appeals. In a unanimous 81-page opinion this week, the 4th Circuit reversed Jackson’s ruling.  Chief Judge William Traxler found that “Liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. It is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”  This brings the appeals court in line with virtually every other court that has looked at whether Facebook speech is real speech, including one that found a “like” to be speech as well.

Early news reports of this week’s decision suggest that the courts are grudgingly dragging their wrinkly old carcasses into the modern era, by gracelessly acknowledging that Facebook speech, even symbolic Facebook speech, is communicative.  But a closer reading of Judge Traxler’s opinion reflects a more savvy reality: that Facebook in specific and social networks in general have the capacity for a kind of super-speech, one that is vastly more politically powerful and communicative than the mere words we may use face-to-face.  Traxler understands that the single click of a “like” button can announces to all one’s friends—on his Facebook page and in their newsfeeds—that he prefers his boss’ opponent. Unlike the district court judge, who declined to guess what a “like” might even signify, Traxler understands that, “at the most basic level, “clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.” He goes on to add: “That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”

Of course symbolic political speech has long been protected anyhow, even in the absence of any words at all, with the court deeming flag burning, armband wearing, draft card burning, and a good deal of other wordless conduct as vitally important political speech.  But what seems different about the 4th Circuit opinion is the extent to which it understands the potential for Facebook—even the meager “like” function—to communicate important ideas in small but powerful ways.

As Leigh Ellen Grey argued in a recent Note in the Charleston Law Review, Facebook gets a bad rap as a place in which there is so much noise that it’s not unreasonable for courts to disparage it. But to Grey, Facebook is a latter-day public square, and the act of clicking the “like” button goes far beyond the cliché of lazy social media narcissists who do nothing but preen and bicker. For instance, Grey cites studies that show that Facebook users, compared with general Internet users, were “two-and-a-half times more likely to attend a political event, 57% more likely to try to convince someone to vote for a certain candidate, and 43% more likely to have voted or to intend to vote.” She cites another study indicating that the likelihood of voting soars when prospective voters are encouraged to do so by a Facebook friend. Grey gives examples of Facebook speech that are vastly more powerful and effective than any lawn sign could ever hope to be—like the Arab Spring, or the “Chick-fil-A Appreciation Day” and “National Same-Sex Kiss Day” organized to support or protest Chick-fil-A’s policies regarding same-sex marriage. The 4th Circuit acknowledges that Internet speech isn’t just speech. It’s powerful speech.

It is fashionable to bash courts and judges with the criticism that they completely refuse to understand modern technology, as they tap away on their stone tablets with the beak of a Flintstones bird. Often, the criticism is warranted. Justice Stephen Breyer once referred to “the Tweeter.” Justice Antonin Scalia and Chief Justice John Roberts once discussed texting at an oral argument in the following manner: Roberts: “I thought, you know, you push a button; it goes right to the other thing.” Scalia: “You mean it doesn’t go right to the other thing?” (Justice Anthony Kennedy found him similarly baffled in a discussion of violent videogames and the V-chip.) Judge Reggie Walton, who oversaw the Roger Clemens perjury trial,  had to ask a juror to explain Twitter. But when a court takes the time to really engage with a new form of media, to understand how it works and how quickly it has changed the way we communicate, we all win.

Only 10 years ago it would have been impossible to imagine that pressing briefly on an upturned thumb would become the equivalent of shouting a political endorsement out an open office window. But just because something was once unthinkable doesn’t make it untrue. Technology is changing faster than judges can hire their next crop of law clerks to explain it to them. When they get it right, they should be celebrated for it.