On “Liking” as Unprotected Speech

I’m not sure how we can protect so much free expression, yet “liking” something on Facebook isn’t something that be protected.

The internet is proving to be quite the legal hot mess. Zuckerberg and facebook everything, app data privacy laws, Google’s maps/network issues, the piracy bills…they’re all fascinating (to a point. After I’ve hit that wall of overload, I just roll my eyes and click the x on the tab and move onto something equally mind-numbing, all while knowing that my personal browsing history is being mined by companies trying to sell me things. Trust me, I feel sorry for the person or computer that has to sort through my history. It’s equal parts fascinating, terrifying, and boring.)

You shouldn’t be able to get fired for “liking” your competitors, whether it’s a political contest or not. (Just read the article about “liking” on facebook not being protected speech.) I don’t understand why we can’t protect this not-speech because it’s less expressive than a post, for example. The intention is clear.

I agree with Eugene Volokh on this one:

However, First Amendment scholars said there isn’t much to infer: “Liking” a Facebook page is much like putting a bumper sticker on a car or wearing a button. One critic of the ruling is Eugene Volokh, a law professor at the University of California at Los Angeles, who critiqued the judge’s decision in a blog posting.

In an interview, Volokh said while a “like” could be ambiguous, there’s no question it counts as speech. A thumbs-up gesture is symbolic expression protected by the First Amendment, for instance, and “liking” something on Facebook is even more clearly expressive because it generates text on a computer screen, he said.

“It is conveying a message to others. It may just involve just a couple of mouse clicks, or maybe just one mouse click, but the point of that mouse click, a major point of that mouse click, is to inform others that you like whatever that means,” he said.

source: law.com

On facebook that I “like” certain things, such as:

Favorites


Books
  • A Dirty Job
  • AP Stylebook
  • The Manual of Detection
  • The Shadow of the Wind
  • The Phantom Tollbooth
  • Pass The Colors Please
  • The Unbearable Lightness of Being
  • Harry Potter

Movies
  • James Bond
  • Anchorman
  • Better Off Dead
  • Loss For Words
  • American Beauty

Television
  • Party Down
  • Jeopardy!
  • Modern Family
  • The Cosby Show
  • The Colbert Report
  • 30 Rock
  • Parks and Recreation
  • Its Always Sunny in Philadelphia
  • How I Met Your Mother
  • Seinfeld

Games
  • Trivial Pursuit
  • Pictionary
  • Scrabble

Athletes
  • Chauncey Billups

Sports Teams
  • Denver Nuggets
  • Green Bay Packers
  • Denver Broncos

Activities
  • Snowboarding
  • Pub quiz

Interests
  • Traveling

etc.

Of course I “like” bacon. I like it. No explanation needed.

Walking away from explosions without looking at them is another story entirely. (Does it benefit me in any way? Of course not, this is facebook.) I’ve never actually blown something up. I mean, in theory, I would like walking away from explosions without looking at them but in all honestly, I’m too chicken-shit responsible to do anything like that.

Do I like it when things blow up? Not really, no.

Do people understand that I’m not being serious? Hopefully.

Do I agree with everything that those pages post? No.

Does my boss think that my political views will affect my ability to do my work or “hinder the harmony and efficiency of the office”? No.

Am I worried that I’m at risk of being fired over any of my postings? Not really. (I have something I like to call my “Grandmother goggles.” If I wouldn’t say it to my grandmother, I won’t post it. Granted, I have a pretty understanding grandma, but still. That’s not a bad rule to live by.)

But am I mindful of what I post? Usually. That’s why I don’t bitch about everything on my blog or facebook wall, or whatever. I don’t want it coming back to haunt me (work-wise or life-wise).

Do we all need to remember that just because we don’t like it doesn’t mean we can make it illegal? Of course.

For example, I hate people who post racist content all over the internet. Are they protected? Yes.

Do I respect their rights? Yes.

Do I want to? No.

Do I support separation of facebook and work? Yes.

Do I think that’s entirely possible? No.

Are we in for years of legal battles about our privacy, our rights, our information? Yes.

Should we try to be cognizant of what we’re agreeing to on those “Terms and Conditions” pages? Of course.

Is that way harder than it sounds? Absolutely.

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