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Facebook and First Amendment rights

Stacked3This week's Daily Record column is entitled " Facebook and First Amendment rights." My past Daily Record articles can be accessed here.


Facebook and First Amendment rights

Did you know that a few years ago, the number of times that Americans viewed social media sites per day surpassed pornography site views? When that happens, you know you’ve reached a tipping point!

Reaching that dubious milestone was just one more sign that social media is more than just a fad or a passing fancy. After all, it affects every aspect of our lives, from communication and interaction with loved ones and friends to influencing our purchasing choices and the way that we conduct business.

In other words, social media use has permeated our culture and more than ever before, people are sharing information about all aspects of their lives using social networking sites. Some of these disclosures are broadcast publicly while others are limited to select friends and followers. But whether distributed publicly or to a small circle of friends, online communications via social media sites can sometimes have a sizable offline impact, as was the case in a recent federals appeals court case where online activities intersected with the First Amendment.

One issue in Bland v. Roberts, No. 12-1671, was whether the actions of one of the plaintiff’s — showing support for a political candidate by “liking” his Facebook campaign page — was a “communication” protected by the First Amendment. The case arose when one of the plaintiffs, a sheriff’s deputy, “liked” the Facebook campaign page of a candidate for sheriff who was running against the deputy’s boss. The deputy was fired and subsequently sued his former employer alleging that his termination was in retaliation for exercising his First Amendment right to free speech.

Previously, other courts had considered the issue of whether certain types of online statements made on social media constituted speech and and concluded that they were constitutionally protected speech, but the issue of whether a “like” on Facebook was a “substantive statement” and thus protected was an issue of first impression.

In reaching its decision on this issue, the Fourth Circuit U.S. Court of Appeals examined the nature of a Facebook “like,” explaining that, at its essence, it was a form of communication:

“Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement. In the context of a political campaign’s Facebook  page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”

The court then wisely sought out offline comparisons to the online activity of “liking” a Facebook page and concluded that the plaintiff’s Facebook “like” was indeed speech protected by the First Amendment: “In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

In other words, as I’ve repeated time and time again, the medium does not change the message. Online behavior is no different than offline behavior and seeking out the offline corollary for online behavior is the best way to reach appropriate decisions when interpreting 21st century conduct using 20th century precedent. Kudos to the Fourth Circuit for issuing a decision that will withstand the test of time.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.