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August 9, 2012

Court mulls free speech implications of clicking 'like'

Daniel Ray Carter Jr. logged on to Facebook and did what millions do each day: He "liked" a page by clicking the site's thumbs up icon. The problem was that the page was for a candidate who was challenging his boss, the sheriff of Hampton, Va.

That simple mouse click, Carter says, caused the sheriff to fire him from his job as a deputy and put him at the center of an emerging First Amendment debate over the ubiquitous digital seal of approval: Is liking something on Facebook protected free speech?

Carter filed a lawsuit claiming that his First Amendment rights had been violated, and his case has reached the U.S. Court of Appeals for the 4th Circuit. This week, Facebook and the American Civil Liberties Union filed briefs supporting what they say is Carter's constitutional right to express his opinion, signaling the case's potentially precedent-setting nature.

The interest was sparked by a lower court's ruling that "liking" a page does not warrant protection because it does not involve "actual statements." If the ruling is upheld, the ACLU and others worry, a host of Web-based, mouse-click actions, such as re-tweeting (hitting a button to post someone else's tweet on your Twitter account), won't be protected as free speech.

"We think it's important as new technologies emerge . . . that the First Amendment is interpreted to protect those new ways of communicating," said Rebecca K. Glenberg, legal director of the ACLU of Virginia. "Pressing a 'like' button is analogous to other forms of speech, such as putting a button on your shirt with a candidate's name on it."

Facebook's like button appears next to many different types of content on the site, from photos of a friend's kids to an organization's page to news articles. When someone clicks the button, an announcement is posted on his or her profile saying that the user likes that piece of content. The like is usually displayed to the user's Facebook friends as well. Facebook says there are more than 3 billion likes and comments registered every day.

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