4 ms·

Facebook 'Like' is Protected Speech, Appeals Court Says

53 points by mcphilip 13y ago

jfasi 13y ago
Could anyone shed some light on the meaning of "protected speech?" There was some hubbub concerning people being targeted by law enforcement for statements made on Facebook and Google searches. Would an expansion of the definition of protected speech curb these sorts of police actions?
- wf 13y ago
  It just means free speech. IANAL but I would imagine that this ruling could be cited in future cases concerning free speech on social networks, etc.
- rayiner 13y ago
  Protected speech is just speech that isn't not protected. That is to say, the default rule is that speech is protected, unless it falls into certain categories of exceptions. I don't know of any credible story about people being prosecuted for Google searches. The prosecutions for Facebook comments tend to boil down to the police arguing that the comments are threats, which fall into one of the exceptions for unprotected speech.
  - greenyoda 13y ago
    Examples of speech that is not protected under the First Amendment would be incitement to riot, or everyone's favorite example of "shouting 'fire' in a crowded theater" (when there is no actual fire).
    - chrismcb 13y ago
      Shouting "fire" is actually a bad example. https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the...
  - vec 13y ago
    In this case the test was "substantive speech". IANAL, but my layman's understanding is that in order for some action to be protected under free speech laws it has to intentionally communicating some coherent message. So, for example, if I was kicked out of a restaurant for not wearing shoes I couldn't generally claim free speech protections for my lack of footwear. However if I did so as part of some theoretical organized protest involving shoes then I could, as in the second case my unshod state was clearly intended to convey some message.
    - lwf 13y ago
      Except you don't have free speech protections in restaurants; they're private establishments that are free to restrict speech as they see fit, provided they are not discriminating on the basis of your membership in a protected class.
    - rayiner 13y ago
      A restaurant can kick you out for whatever. You only have free speech rights against the government. As to "substantive speech," the bar is low. Substantive in this case means just that it communicates a meaning. The meaning doesn't have to be important. Physical expression, like wearing shoes, involves a higher bar.
loceng 13y ago
I would have linking to something online would be protected under free speech, too.
hawkharris 13y ago
Of course "likes" are protected! They're a form of voting and, in this case, expressing political opinions. Speech about politics, science and the arts generally enjoys stronger protection under the First Amendment.
- chrismcb 13y ago
  Clicking "like" on something in facebook is nothing like a form of voting. It is a form of subscription. It says you want to get updates about the thing you "liked." Maybe you hate the competitor, but you want to get notified if something newsworthy happens. So you "like" him. I'm not sure it falls under free speech, because you are really saying anything other than "I'm interested in knowing more about this subject"
  - silentOpen 13y ago
    Mechanically, yes. Linguistically, no. Despite "Like" only subscribing you, Facebook has given that action a connotation of endorsement by naming the action "Like" which suggests agreeableness, enjoyment, or satisfaction.
  - biot 13y ago
    Clicking "Like" on a Fluffy Bunnies fan page isn't merely a subscription. It also broadcasts to everyone "chrismcb liked Fluffy Bunnies". I'm guessing that most people consider the subscription nature of liking an item secondary to the statement of support of that item. Further to that, in Facebook you can click the down-arrow next to a post and select "Follow Post". This is the pure subscription act minus the protected speech.
  - mullingitover 13y ago
    > Clicking "like" on something in facebook is nothing like a form of voting. It is a form of subscription. It says you want to get updates about the thing you "liked." This is not how I or (citation needed, I know) most people use likes most of the time.The subscription scheme with likes was foisted on users by facebook to enhance their ability to sell themselves as a marketing destination.
antihero 13y ago
So ok, I think one interesting hypothetical would be that someone in your company publicly "likes" the Aryan Brotherhood Facebook page (though I doubt such thing exists and it would likely be some derivative). Could you sack your employee for being a total racist? I guess it would technically boil down to what the actual impact on people at work would be. Do you have an employee who is an ethnic minority who feels threatened by this? Do they actively threaten them? It is complicated. If we truly see ourselves as liberal and tolerant, how exactly should we react to someone who is openly part of an intolerant group who is offensive to our viewpoint? Do we draw a line somewhere? Lots of questions, ethical and legal.
- jemfinch 13y ago
  > Could you sack your employee for being a total racist? If you're in any of the 49 at-will employment states, you can sack your employee because you flipped a coin and it landed the wrong way. Hypotheticals about firing people aren't ever really interesting in those states. It's not complicated, and it wouldn't "technically" boil down to anything.
  - brandoncapecci 13y ago
    At will employment doesn't nullify wrongful termination suits.
  - delinka 13y ago
    The key to at-will is not giving a reason. Because if the employer give the wrong reason, they would probably lose a lawsuit.
vilhelm_s 13y ago
The opinion itself is here: http://www.ca4.uscourts.gov/Opinions/Published/121671.P.pdf http://www.ca4.uscourts.gov/Opinions/Published/121671.P.pdf

53 points by mcphilip 13y ago

jfasi 13y ago

Could anyone shed some light on the meaning of "protected speech?" There was some hubbub concerning people being targeted by law enforcement for statements made on Facebook and Google searches. Would an expansion of the definition of protected speech curb these sorts of police actions?

wf 13y ago
It just means free speech. IANAL but I would imagine that this ruling could be cited in future cases concerning free speech on social networks, etc.
rayiner 13y ago
Protected speech is just speech that isn't not protected. That is to say, the default rule is that speech is protected, unless it falls into certain categories of exceptions. I don't know of any credible story about people being prosecuted for Google searches. The prosecutions for Facebook comments tend to boil down to the police arguing that the comments are threats, which fall into one of the exceptions for unprotected speech.
- greenyoda 13y ago
  Examples of speech that is not protected under the First Amendment would be incitement to riot, or everyone's favorite example of "shouting 'fire' in a crowded theater" (when there is no actual fire).
  - chrismcb 13y ago
    Shouting "fire" is actually a bad example. https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the...
- vec 13y ago
  In this case the test was "substantive speech". IANAL, but my layman's understanding is that in order for some action to be protected under free speech laws it has to intentionally communicating some coherent message. So, for example, if I was kicked out of a restaurant for not wearing shoes I couldn't generally claim free speech protections for my lack of footwear. However if I did so as part of some theoretical organized protest involving shoes then I could, as in the second case my unshod state was clearly intended to convey some message.
  - lwf 13y ago
    Except you don't have free speech protections in restaurants; they're private establishments that are free to restrict speech as they see fit, provided they are not discriminating on the basis of your membership in a protected class.
  - rayiner 13y ago
    A restaurant can kick you out for whatever. You only have free speech rights against the government. As to "substantive speech," the bar is low. Substantive in this case means just that it communicates a meaning. The meaning doesn't have to be important. Physical expression, like wearing shoes, involves a higher bar.

loceng 13y ago

I would have linking to something online would be protected under free speech, too.

hawkharris 13y ago

Of course "likes" are protected! They're a form of voting and, in this case, expressing political opinions. Speech about politics, science and the arts generally enjoys stronger protection under the First Amendment.

chrismcb 13y ago
Clicking "like" on something in facebook is nothing like a form of voting. It is a form of subscription. It says you want to get updates about the thing you "liked." Maybe you hate the competitor, but you want to get notified if something newsworthy happens. So you "like" him. I'm not sure it falls under free speech, because you are really saying anything other than "I'm interested in knowing more about this subject"
- silentOpen 13y ago
  Mechanically, yes. Linguistically, no. Despite "Like" only subscribing you, Facebook has given that action a connotation of endorsement by naming the action "Like" which suggests agreeableness, enjoyment, or satisfaction.
- biot 13y ago
  Clicking "Like" on a Fluffy Bunnies fan page isn't merely a subscription. It also broadcasts to everyone "chrismcb liked Fluffy Bunnies". I'm guessing that most people consider the subscription nature of liking an item secondary to the statement of support of that item. Further to that, in Facebook you can click the down-arrow next to a post and select "Follow Post". This is the pure subscription act minus the protected speech.
- mullingitover 13y ago
  > Clicking "like" on something in facebook is nothing like a form of voting. It is a form of subscription. It says you want to get updates about the thing you "liked." This is not how I or (citation needed, I know) most people use likes most of the time.The subscription scheme with likes was foisted on users by facebook to enhance their ability to sell themselves as a marketing destination.

antihero 13y ago

So ok, I think one interesting hypothetical would be that someone in your company publicly "likes" the Aryan Brotherhood Facebook page (though I doubt such thing exists and it would likely be some derivative). Could you sack your employee for being a total racist? I guess it would technically boil down to what the actual impact on people at work would be. Do you have an employee who is an ethnic minority who feels threatened by this? Do they actively threaten them? It is complicated. If we truly see ourselves as liberal and tolerant, how exactly should we react to someone who is openly part of an intolerant group who is offensive to our viewpoint? Do we draw a line somewhere? Lots of questions, ethical and legal.

jemfinch 13y ago
> Could you sack your employee for being a total racist? If you're in any of the 49 at-will employment states, you can sack your employee because you flipped a coin and it landed the wrong way. Hypotheticals about firing people aren't ever really interesting in those states. It's not complicated, and it wouldn't "technically" boil down to anything.
- brandoncapecci 13y ago
  At will employment doesn't nullify wrongful termination suits.
- delinka 13y ago
  The key to at-will is not giving a reason. Because if the employer give the wrong reason, they would probably lose a lawsuit.

vilhelm_s 13y ago

The opinion itself is here: http://www.ca4.uscourts.gov/Opinions/Published/121671.P.pdf http://www.ca4.uscourts.gov/Opinions/Published/121671.P.pdf