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article imageFacebook, ACLU appeal court, argue 'Like' button is free speech

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By Leigh Goessl     Aug 9, 2012 in Internet
This week both Facebook and the ACLU have filed a brief in an Eastern Virginia Court asserting the "Like" Button is covered as free speech under the First Amendment.
This paperwork was filed on behalf of one of the six employees that were fired from a Hampton, Va. sheriff's department, alleging they were fired because they "liked" an opposing candidate to the sheriff on Facebook during the 2009 election campaign.
Digital Journal reported on the case in May. U.S. District Judge Raymond Jackson had ruled clicking the "Like" button is not the same type of expression as typing out a message, thus is not covered under the First Amendment.
It was widely speculated at the time this ruling would be appealed, and that is indeed the case.
This decision is now being appealed by one of the plaintiffs. According to Forbes, Daniel Ray Carter, Jr., one of the fired employees, has appealed the decision. Both Facebook and ACLU have filed paperwork in support of the appeal arguing that clicking the "Like" button is free expression and deserves Constitutional protection.
Facebook filed its brief as amicus curiae on Aug. 6 [PDF], writing:
"The district court’s holding that “‘liking’ a Facebook page is insufficient speech to merit constitutional protection” because it does not “involve[] actual statements,” J.A. 1159, betrays a misunderstanding of the nature of the communication at issue and disregards wellsettled Supreme Court and Fourth Circuit precedent. Liking a Facebook Page (or other website) is core speech: it is a statement that will be viewed by a small group of Facebook Friends or by a vast community of online users."
Facebook essentially explains in its brief how the network operates, and also explains how it is built upon the sharing and expression of views by users. It compares itself to more traditional forms of expression, indicating the "Like" button, "represented by a thumbs up icon", is a way for users to share information on the network, and should be protected under the Constitution.
"If Carter had stood on a street corner and announced, “I like Jim Adams for Hampton Sheriff,” there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection," Facebook wrote.
CNET reported the ACLU, which filed its own friend-of-the-court briefing this week [PDF], issued a statement.
"Facebook should be applauded for filing this brief to support the free speech rights of its users," the ACLU said in a statement. "Facebook has become a means of communication for tens of millions of Americans, and if basic activity on Facebook such as 'liking' were denied First Amendment protection, the free expression of ideas that the First Amendment is meant to safeguard would be severely limited."
Now the issue is back in the hands of the Court to decide. This case highlights some interesting dynamics as technology continues to seep into daily activities. Laws were obviously not written with technology in mind, so it is not uncommon to find there are many grey areas that have emerged as a result of the impact of technological progression.
Facebook's highly-used "Like" button, is a current example of exactly how forms of expression do or do fit into the line of the law.
"It's a somewhat odd decision that a Facebook "Like" is not protected speech," Jeff Hermes, director of the Digital Media Law Project, Berkman Center for Internet & Society had told MSNBC back in the spring. "The judge was essentially devaluing the 'Like' as speech because of how simple it is to do."
Fortune brings up another point that Facebook "actually creates all kinds of potential headaches" with its popular "Like" button, noting that "liking" a website or page "expresses interest, but not necessarily support". The article muses whether or not anyone really know if a person "likes" the page they've clicked, or are they simply following updates and news?
The Forbes article also speculates whether or not some of the issues could be mitigated if Facebook altered the name of the button to say something like "follow" or "track".
However, this might go against Facebook's need to make itself appealing to advertisers, and as the network struggles on the stock market, making such a change may not be desired. If they did though, it would clearly outline what someone means when they click "Like".
Should the "Like" button be protected under the First Amendment? What do you think?
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