August 14, 2012
Back in May, I wrote about a court ruling that “got it wrong” about First Amendment protections online.
That case, Bland v. Roberts, was brought by former employees of a sheriff’s office who claimed that they were fired because they supported the incumbent sheriff’s opponent during a 2009 election; one of these employees had “Liked” the opponent’s Facebook page.
The court ruled that a Facebook “Like” isn’t expressive under the First Amendment, nor is it any kind of association, and thus it is not entitled to free speech protections.
I concluded the article by saying that, because the court found (on better legal grounds) that the defendant was entitled to both qualified and Eleventh Amendment immunity, an appeal by the plaintiffs was unlikely to succeed, and thus, the plaintiffs were unlikely to appeal at all.
Unless “some outside advocacy groups get involved and offer support,” “then, such an appeal is likely.”
Well, that happened.
Last week, Facebook and the American Civil Liberties Union (ACLU) filed amicus curiae briefs in support of the plaintiffs’ appeal, which was filed a week earlier.
It doesn’t take much imagination to figure out why the ACLU is supporting the plaintiffs’ appeal: in their own words, the organization is dedicated to “advocating individual rights” through, among other means, litigation.
As expected, the ACLU’s amicus brief fervently argues that a Facebook “Like” is entitled to First Amendment protections because it is both a form of speech and a form of association protected there under.
It also goes one step further for the plaintiffs (now the appellants) by attacking the district court’s ruling on the issue of qualified immunity (though the brief is silent on immunity under Eleventh Amendment – which protects the state from lawsuits).
Facebook’s brief doesn’t go this far; instead, it stays limited to arguing that “Liking” a Facebook page is entitled to constitutional protections.
When you consider Facebook’s real interest in this lawsuit, it really shouldn’t come as any surprise.
But what is Facebook’s interest?
According to its brief, Facebook “has a vital interest in ensuring that speech on Facebook and in other online communities is afforded the same constitutional protection as speech in newspapers, on television, and in the town square.”
Okay, but, why?
After all, Facebook isn’t an individual rights advocacy organization; it’s not doing this just to fight for online speech rights.
It’s a publically-traded corporation, and as such, it has to have a financial interest in this litigation for it to get involved.
Let’s look at it this way: if Facebook Likes aren’t constitutionally-protected forms of speech, and Facebook users can be fired from their jobs based on what they Like on Facebook, far fewer people will engage in the online practice.
If fewer people Like pages on Facebook, it will be less able to (among other things) accurately advertise to users and forced to charge less to organizations to advertise to their Facebook Likes (since those pages will have fewer Likes to advertise to).
In short, Facebook’s primary source of revenue is advertising, and its advertising is primarily reliant on its “Like” feature.
Thus, if fewer people click “Like,” Facebook’s advertising revenue goes down.
It may seem as though I am denigrating Facebook’s intentions for helping the appellants in this lawsuit, but I am not.
Just the opposite, actually: Facebook’s actions here are an encouraging sign.
Facebook, like other social media sites such as LinkedIn and Twitter, are financially reliant on having as many users as possible be engaged online.
This, in turn, means that it’s a practical business decision for these companies to get legally involved to protect online First Amendment rights.
To some, this economic motivator may not be the most noble.
However, it undeniably recruits defenders of the First Amendment who may otherwise be indifferent.