'Liking' on Facebook and the First Amendment

Last year, a federal court held that clicking the "Like" button on a Facebook page was not constitutionally protected speech. The case, now being appealed, highlights the evolution of the traditional "public forum" as it moves from places like public parks to such social media sites as Facebook and Twitter. It also raises questions about how, when and why we communicate in these public spaces that social scientists can and should weigh in on.

The case, Bland v. Roberts, began as an employment dispute. The plaintiffs — four deputy sheriffs and two non-uniformed civilian employees — alleged that they lost their jobs with the local sheriff after they showed support for a rival candidate for sheriff. Two of the deputies had shown this support in part by clicking the "Like" button on the rival's Facebook page. Shortly after the sheriff was re-elected, the plaintiffs were fired. The plaintiffs argued that they had been fired for expressing political opinions and that as such the firings violated their First Amendment right to free speech.

When the case came before the U.S. District Court for the Eastern District of Virginia, one key legal question was whether the plaintiffs had engaged in "expressive speech" by clicking the "Like" button. In April 2012, the District Court judge held that they had not. In so holding, the judge distinguished the case from previous cases that had extended First Amendment protection to Facebook posts, finding a difference between "liking" a Facebook page and making an "actual statement." According to the judge, the mere act of "liking" cannot be constitutionally protected because it is not "speech" for purposes of the First Amendment.

The plaintiffs in Bland have appealed the ruling to the U.S. Court of Appeals for the 4th Circuit, and they have garnered support in the form of amicus briefs from both Facebook and the American Civil Liberties Union. The opinion has also generated much comment among legal scholars, who point out that expressive speech need not be literal words to be constitutionally protected. In Tinker v. Des Moines (1969), for example, the U.S. Supreme Court held that the wearing of black arm bands was protected speech for purposes of the First Amendment. And in Texas v. Johnson (1989), the Court held that the act of flag burning was constitutionally protected speech. Such symbolic expressions have been repeatedly found to be sufficiently communicative to merit constitutional protection. Critics of Bland argue that the opinion fundamentally misunderstands what it means to "Like" a Facebook page, and their arguments suggest a fertile ground for future research in psychology, communication and sociology.

Social media, and Facebook in particular, have already begun to capture researchers' attention. Psychologists, among others, are exploring the implications of Facebook use for identity, relationships, emotions and well-being, and notions of privacy. Researchers at the University of Cambridge recently published a study in which they used Facebook "Likes" to predict Big Five personality traits. However, little attention has been paid to explaining why and how people use "Likes" and other social media endorsements. What do Facebook users intend to communicate when they click the "Like" button? What do they actually communicate? Is it true, as some have argued, that "liking" a candidate's Facebook page is the modern equivalent of putting a bumper sticker on your car or a sign on your lawn? Answers to these and other psychological questions seem particularly relevant to the legal issues raised in cases like Bland.

“Judicial Notebook” is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).