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Facebook Wants Free Speech Protection for 'Like' Feature

By - Source: Bloomberg | B 18 comments

There's a battle in court over the Facebook "Like" feature and free speech.

On Friday during a Federal Appeals Court hearing, Facebook's legal representative Aaron Panner argued that the social network's "Like" feature must have free speech protection under the U.S. Constitution because it allows the site's 500 million members to share ideas.

The argument stems from a previous case surrounding six individuals who were fired from the Hampton, Virginia, sheriff’s department for "Liking" on Facebook. Danny Carter, a 40-year-old former Hampton jailer, reportedly clicked the "Like" button on the "Jim Adams for Hampton Sheriff" Facebook page four years ago, his boss's opponent in a race to fill the sheriff's seat during re-election.

After Sheriff B.J. Roberts won the re-election in 2009, he fired Carter along with five other individuals for clicking the "Like" button. They retaliated with a lawsuit, claiming that Sheriff Roberts violated their rights to political affiliation, and their right to speak as citizens on issues of public concern. The lawsuit was dismissed on April 24, 2012 by U.S. District Judge Raymond Jackson in Norfolk, Virginia, who said that a Facebook "Like" isn't First Amendment speech.

Facebook disagrees. “Any suggestion that such communication has less than full constitutional protection would result in chilling the very valued means for communication the Internet has made possible,” Panner told a three-judge panel in Richmond, Virginia on Friday.

Facebook was given exactly three minutes of argument time during the 40 minute hearing and received no questions from the three judges. Panner insisted that hitting the "Like" button on a candidate's page is no different than planting a yard sign during an election, suggesting that onlookers vote for a specific candidate. This free lawn-based political advertisement was ruled as protected speech by the U.S. Supreme Court in 1994.

U.S. Circuit Judge Stephanie Thacker seemed to agree with Facebook. "Carter clicked the Like because he liked something," she told Jeff Rosen, the lawyer representing Sheriff Roberts. "How is that any different than perhaps putting a sign in the yard saying ‘I Like Ike’?"

Rosen argued that "Liking" a Facebook page means a number of different things, and is too obscure an act to warrant protection. Some people can "Like" a page to enter a contest, to get a coupon, or are curious about information that can only be accessed by hitting the button. It's like opening a door into a room, he said.

"You can’t see what’s in there until you click on the button," Rosen added. "That’s not speech."

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Top Comments
  • 16 Hide
    santeana , May 18, 2013 1:55 PM
    Heh... never thought I'd ever agree with FB on anything.... but I kinda do on this one. And those guys should never have been fired. I can't believe that was thrown out!
    "What? You don't like me? Ok, go look for work elsewhere, you're fired!"
    Would that not come under wrongful dismissal in any other job?
Other Comments
  • -4 Hide
    10tacle , May 18, 2013 1:30 PM
    Just another reason to either 1) stay the hell away from FB, or 2) have a fake FB account with enough fake/spam email account layers to be nearly impossible to trace to a real person without IP investigations (and then there are ways to IP cloak too when setting up all of the above, but that's another story).
  • 16 Hide
    santeana , May 18, 2013 1:55 PM
    Heh... never thought I'd ever agree with FB on anything.... but I kinda do on this one. And those guys should never have been fired. I can't believe that was thrown out!
    "What? You don't like me? Ok, go look for work elsewhere, you're fired!"
    Would that not come under wrongful dismissal in any other job?
  • Display all 18 comments.
  • 4 Hide
    mrmike_49 , May 18, 2013 2:56 PM
    U.S. District Judge Raymond Jackson in Norfolk, Virginia, is a moron!
  • -8 Hide
    JOSHSKORN , May 18, 2013 6:10 PM
    So what's worse? Copyrighting "Like" or Apple's curved edges?
  • 6 Hide
    unksol , May 18, 2013 7:43 PM
    REALLY josh? This has nothing to do with copyright. This is about Facebook argueing your boss can't fire you for disagreeing with his political beliefs. It's stupid we even have to have the discussion.
    There's always more to it though. If you and your boss don't get along and you're constantly in conflict or disregarding instructions you CAN be fired. and lets face it, if you want your boss fired you have to disagree with what he's doing. But if they weren't expressing it or causing issues in the workplace the SHERIFF needs canned.
    For all we know they were fired for in-subordination in the work place and are arguing over Facebook likes. You never get the full story from the media. They just wasn't your attention.
  • 2 Hide
    ananthu123 , May 18, 2013 8:02 PM
    In a related context, two girls in Mumbai were arrested for a facebook post on a prominent political leader, one for writing the post (makes better sense) , and one for *liking* it.
    http://bit.ly/UWbjcp
  • 2 Hide
    TheCapulet , May 19, 2013 11:34 AM
    It's already protected by Free speech. Just because some judge makes an illegal ruling, it doesn't mean our First Amendment is null and void.
  • 1 Hide
    TheCapulet , May 19, 2013 1:22 PM
    It's already protected by Free speech. Just because some judge makes an illegal ruling, it doesn't mean our First Amendment is null and void.
  • 1 Hide
    thefiend1 , May 19, 2013 10:39 PM
    Facebook has no business arguing about "Free Speech" when they choose to shut down politicially based Facebook Pages of its choice.
  • -2 Hide
    dalethepcman , May 20, 2013 9:45 AM
    The funny thing, is that it doesn't matter if he fired them for clicking "like" on facebook, Virginia is an "At will" employment state. Because the like button had no legal precedence to be protected speech when they were fired, the sheriff was not in the wrong.
    Heck he could have fired them for voting for Obama, being gay, being strait, being too fat, thin, tall, short, having an ugly face, etc...
    Race, Religion, Gender, Age, Military status, or disabled status are the only protected ones for discrimination. In an "at will" state you can be fired for anything other than those 6 items.
  • 0 Hide
    JonnyDough , May 20, 2013 12:14 PM
    Dale, voting is a form of free speech. We have the right to vote, however we want - without fear of reprisal...from ANYONE, including bosses.
  • 0 Hide
    CerianK , May 20, 2013 2:30 PM
    So, let me get this straight. Clicking 'Like' (according to Robert's attorney) is like opening a door. So those that got fired, were fired for the equivalent of "opening a door into a room". Good luck with that argument. {me looks around while leaving work to make sure no one is watching}.
  • 0 Hide
    udg , May 20, 2013 3:23 PM
    I wish the FB phase would just die out like the other before it such as MySpace or BEBO.
  • 0 Hide
    udg , May 20, 2013 3:24 PM
    I wish the FB phase would just die out like the other before it such as MySpace or BEBO.
  • 0 Hide
    udg , May 20, 2013 3:24 PM
    I wish the FB phase would just die out like the other before it such as MySpace or BEBO.
  • 0 Hide
    softplacetoland , May 22, 2013 1:15 PM
    So, Facebook which jeopardise your privacy all day long so suddenly care for your rights to speak freely? Hmmm .... there are no room for distrust, I believe :] Facebook still counts and read words in your books. Something you SHOULD belive is true.
  • 0 Hide
    Adinda Nita , July 21, 2013 3:19 AM
    Perfect :-)
  • 0 Hide
    Adinda Nita , July 21, 2013 3:20 AM
    Perfect :-)
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