United States: Free Speech On Facebook: You Can ‘Like’ But You Can't Threaten

Last Updated: September 30 2013
Article by Mark Sableman

It is another sign that Facebook has arrived. Facebook communications have become the newest testing ground for free speech. And the results, at least from two recent and notable cases, affirm the unusual and perhaps counterintuitive way that U.S law looks at a key threshold question: What is speech?

You might think it's easy to define "speech" as words used to communicate. But that is not accurate, as each of the two recent Facebook cases demonstrates.

In one case, a Facebook user posted forceful and expressive textual musings. They were held not protectable as speech. In the other case, the Facebook user took an action that required no words; he linked to another person's Facebook page using the associative click that is known in Facebook as a "like." That non-textual action was held to be speech.

How can the law perversely classify expressive text as something other than speech, and call a mere click, a simple action, "speech"? Does the law misunderstand Facebook? No, the law properly understands Facebook as a digital communication space where standard free speech ground rules apply. On examination, both of these cases applied standard and understandable First Amendment analysis.

In the first case, which has received a fair amount of publicity, Daniel Ray Carter, Jr., a former Hampton, Va., deputy sheriff sued over his dismissal, claiming that his former boss, the sheriff, retaliated against him for speaking out in favor of a rival candidate. The deputy, as a low-level jailer, could not be terminated for political reasons. So the issue became whether he was terminated for expressing his political opinions.

Carter claimed that he had expressed a political view by "liking" the campaign page of the sheriff's opponent. A Facebook "like" is really more conduct than words. As the 4th U.S. Circuit Court of Appeals noted in Carter's case, "'Liking' on Facebook is a way for Facebook users to share information with each other." When you click on a "like" button, represented by a thumbs-up icon, you become connected to the page that you "liked." That connection will appear in your timeline, and you will appear as a person who likes the linked-to page. Your "liked" page will be able to post content onto your news feed. It is really an action — it turns on certain connections. Similar functions on other social media services have different names; on LinkedIn, essentially the same function is called "connections."

Indeed, the Fourth Circuit decision, Bland v. Roberts, issued September 18, readily concluded that Carter's "liking" of the campaign page was conduct. But that does not mean it isn't speech, too. Particularly in the political campaign context, the "like" inevitably carried the message that the user approved of the linked-to candidacy. It makes no difference that this communication occurred through conduct and had only one word associated with it, the court ruled. "That a user may use a single mouse click to produce a message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance," the court held.

Moreover, even had the word "like" never been used, the "thumbs up" nature of the "like" button is a form of speech, even without any words – it symbolically conveys approval, which is an expressive message. "In sum," the court held, "liking a political candidate's campaign page communicates the user's approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech." As a result, Carter's wrongful discharge suit could proceed, because of his Facebook conduct/speech.

The other side of Facebook speech was illustrated the next day, September 19, as the Third Circuit, in United States v. Elonis, declared that even quite lengthy and expressive textual messages on Facebook could fall outside of free speech protection. The defendant in this case posted multiple Facebook messages, generally directed to, or concerning, his estranged wife. They were mean, nasty, and spiteful (and, in that regard, unfortunately like much other Internet expression).

Mr. Elonis's expression, however, went a step too far. He made violent threats against his wife and her relatives. While he seemed to think he couched his statements as speculative musings, phrases like "There's one way to love you but a thousand ways to kill you" clearly posed threats. And his link to the Wikipedia entry on "Freedom of Speech" did not cure his adjacent free verse threat that "if worse comes to worse/ I've got enough explosives/ to take care of the state police and the sheriff's department."

When Elonis was arrested, he claimed that his statements were not threats but protected speech. The court disagreed. The court referred to several tests for distinguishing between protected political speech and illegal threats, considering the words used (specific or hyperbolic), the context (other threats, or, for example, a speech at a political rally), and the reader's ordinary understanding. Applying these tests, and rejecting Elonis' position that the prosecution had to prove his subjective intent to threaten, the court found the Facebook postings to fall outside of free speech.

These two decisions follow established free-speech principles. Conduct can be protected speech, as in the classic case of flag burning, recognized by the Supreme Court in Texas v. Johnson as symbolic speech. And text of various kinds, can, in context, fall outside free speech protection if, in reality, it constitutes illegal conduct.

Two days, two Facebook decisions. In one, conduct was held to constitute protected free speech. In another, messages were found to fall outside of free speech. Facebook users, welcome to the sometimes paradoxical world of the First Amendment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions