Legally speaking, it’s quite likely that it’s saying something, since the U.S. Supreme Court held that in the campaign-contribution context, that dollar is speech.
So if a greenback can talk up a storm, how is it possible that a Facebook “Like” holds no communicative value?
That was the ruling at a federal district court that had to determine whether employees were fired for exercising their free-speech rights. As the Washington Post tells the tale:
“Daniel Ray Carter Jr. logged on to Facebook and did what millions do each day: He ‘liked’ a page by clicking the site’s thumbs up icon. The problem was that the page was for a candidate who was challenging his boss, the sheriff of Hampton, Va.
“That simple mouse click, Carter says, caused the sheriff to fire him from his job as a deputy and put him at the center of an emerging First Amendment debate over the ubiquitous digital seal of approval: Is liking something on Facebook protected free speech?”
Risky behavior, certainly, especially given how tetchy elected sheriffs can be. But the court ruled that a simple click of “Like,” without commenting, is not speech.
The sheriff’s office is likely ecstatic. But the ruling puts that office in a strange conceptual box: The office fired people for taking a speech position contrary to the top official’s position. And the court sustained that employment decision because there was no speech involved.
Oddly enough, would the court have had to rule otherwise if the employees had dropped dollar bills off at the opponent’s campaign headquarters without a note attached, rather than signal support via a digital thumbs-up?
Now, of course, the appeals roll in. As this article explains, Facebook, the ACLU and a number of amici have briefed the issue of how a Like certainly is speech.
It all makes me wonder how much the court understands social media. I wrote on Friday about a promising survey that shows judges are growing warmer to social media. But anyone who has ever worked hard for a “Like” for their business’s Facebook page understands inherently that a Like is speech. And among all the difficult-to-grasp concepts in technology, “Like” is just what it sounds.
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