Facebook likes are free speech

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Courts are slow to recognize that new forms of technology expand the universe of possibilities for First Amendment expression.

In 1915, the Supreme Court ruled unanimously that free speech protection didn't extend to movies on the grounds that "the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit…[not intended] as part of the press of the country, or as organs of public opinion."

That ruling stood until a more sensible court overturned it in 1952.

All this is to note that a decision from U.S. District Court of Eastern Virginia this past May now under appeal that a "like" on Facebook is likewise not protected free speech is equally as badly thought, even if the grounds for the decision were different. In this new case, Judge Raymond Jackson made a distinction between "substantive" and "insubstantive" statements, arguing that the latter don't involve "enough speech" to fall under the First Amendment.

Even allowing that this apparently unprecedented distinction of expression is valid (which nobody should), Jackson and the court failed to understand that a new medium has unique properties. As the American Civil Liberties Union argues in an amicus brief (.pdf), the ease of clicking an online button doesn't negate its expressive nature.

"With 'one click of a button,' an Internet user can upload or view a video, donate money to a campaign, forward an email, sign a petition, send a pre-written letter to a politician, or do a myriad of other indisputably expressive activities," the ACLU notes.

I would add that the judge probably confuses ease of clicking an online button with ease of thought; it may very well take me only a second to click a button, but that doesn't mean I haven't considered beforehand the consequences of identifying myself with the liked thing.

Of course, whether I have or haven't should have no effect on the First Amendment; it's been proven time and again that the point of free speech protection in the first place is the protection of all discourse to the greatest extent possible irrespective of the value judgment that a court or other people assign to it.

There's a lot of talk these days about how "digital natives" and "digital immigrants" have differing expectations for technology. Certainly there's no doubt that Jackson's childhood precedes the Internet age--but so does mine, and I believe it's no stretch for anyone with even minimal exposure to Facebook to recognize that actions on it constitute expression.

Jackson's failure to do so points to a possible wider pattern of judicial failure to engage with technology before issuing rulings on it, whether that new technology is Facebook or movies. Certainly, now, I think it would be hard to find a judge willing to support the 1915 Supreme Court ruling on freedom of expression and movies. However, freedom of expression advocates can't wait until 2049 for a more sensible court to come along to overturn Jackson's May 2012 decision. The pace of technology expansion is too quick to wait for courts to spend a generation getting comfortable with new technologies before they're willing to acknowledge them as vectors of legitimate expression.

Here's hoping there's enough judges at the appeals level who today will make the right decision. - Dave