Debates in the courtroom over what is defined as protected speech under the First Amendment have taken place since the Constitution was written. With recent technological advances and the explosion of social media, this puzzle takes on a whole new dimension.
As online political communication becomes more and more prevalent with each election like we discussed in class, the rights of citizens to interact with these political subjects become a matter of concern.
Recently, this issue came to light in the court case Bland v. Roberts (1). Six employees of the Hampton’s Sheriff Office were fired by the sheriff for supporting his opponent during an election, including liking the opponent’s Facebook page. A federal district court in Virginia ruled in the sheriff’s favor, declaring, “Liking something on Facebook does not constitute speech and, therefore, does not warrant First Amendment protection” (1).
The Fourth U.S. Circuit Court of Appeals overturned the lower court’s decision (2). Snippets of their reasoning are below:
“‘Liking’ the campaign page, the court said, was the ‘Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech'” (2).
“‘On the most basic level, clicking the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement'” (2).
It may seem nitpicky to argue over whether the simple click of a button on a social network is important enough to be considered free speech, but it has lasting consequences. In this day and age, online platforms and social media are a primary mode of expression of thoughts and beliefs. Not protecting this type of speech would be severely limiting the right to free speech in the most modern sense.
Politically, the outcome of this court case could have an effect on the future of electoral advertising. If online users weren’t protected in their interactions with campaigns, candidates and politicians on social media, they could resort to self-censorship, which would be detrimental to the political communication process. For all the time, effort, money and resources that go into the new sphere of online political communication to be successful and effective, political communicators must rely on the courts to ensure that their goal of interacting with online users will be constitutionally protected.
Speech of a political nature is the most highly scrutinized under the First Amendment; few laws are allowed that restrict it. As online political communication continues to develop, it will be important and interesting to see how the courts decide to rule on the matter of social media protection under the First Amendment.
(1) Robbins, Ira P. “What is the Meaning of “Like”?: The First Amendment Implications of Social-Media Expression.” The Federal Courts Law Review, Vol. 7 Issue 1 (2013): 127-151. Web. 16 Oct. 2013.
(2) Palazzolo, Joe. “Court: Facebook ‘Like’ Is Protected By the First Amendment.” Law Blog. The Wall Street Journal, 18 Sept. 2013. Web. 16 Oct. 2013.