Should a Facebook "Like" Be Protected Free Speech?

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Newswise WASHINGTON, DC (October 23, 2014)One billion Facebook users generate 2.7 billion likes per day (or 1,875,000 every minute). Increasingly, social media has become a form of social and political engagement, and 47 percent of Facebook users have liked political cause-related comments. 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 command constitutional protection? A recent article in the National Communication Associations First Amendment Studies journal 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. An ensuing debate revealed that large numbers of individuals felt this judgment would lead to fear and inhibition, and deter free expression of ideas and opinions onlinethe chilling effect. 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 unreasonable to expect coverage for the Facebook thumbs up. In the context of todays morphing methods of communication, is the law failing to keep 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. Four hundred forty-four participants took part. More than half had liked political content in the past. Four hypotheses were tested and all proved true:

1. Like users most certain of who would see their like expected recipients to understand their meaning. 2. Those who felt they had sent a message with a like were sure that recipients understood. 3. Participants believed when using like on political content that their posts were constitutionally protected. 4. Those using like to convey a message believed that this should be protected by the First Amendment.

The most common interpretations for like amongst participants were agree, support, and generally endorse a person, place, or idea. Overall, participants believed that a like was akin to speech as described in the First Amendment.

The twist in the tale is that on appeal, the Bland v. Roberts judgment was reversed, finding that the thumbs up indeed qualified for protection. 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, note the studys authors, Susan H. Sarapin of Troy University and Pamela Morris of the University of WisconsinLa Crosse. They finish by urging further research on the chilling effect and its potential negative impact on freedom of speech online.