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."