“I Like Ike” is one of the most well-known and catchiest political slogans of all time. According to a decision that was issued by a federal judge in Virginia a few days ago, however, the modern-day equivalent—saying that you "like" a political candidate by using Facebook's "like" feature—is not even worthy of the protections of the First Amendment. That decision is wrong, whether you like or dislike Facebook.
The court’s appears to be premised on its belief that pressing a button to say that you “like” something—in this case, a candidate running for election to be a city’s Sheriff— is not “substantive” enough to be protected by the First Amendment. In the court’s words: “[M]erely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection . . . It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of [the plaintiff’s] posts from one click of a button on [the candidate’s] Facebook page.”
It is hard to understand how revealing to the world that you “like” a particular political candidate does not reveal one’s views or express an opinion. It does exactly that. That many people today choose to convey what they like or which political candidates they support by “liking” a web page rather than by writing the actual words, “I like this web page” or “I like this candidate,” does not matter, either from a practical or a legal perspective. Whether you press a “like” button to express those thoughts or you press the buttons on a keyboard to write out those physical words, the end result is the same: you are telling the world about your personal beliefs and interests. That is exactly what the First Amendment protects, however that information is conveyed.
The court’s conclusion that pressing a button does not involve “enough speech” and that “liking” something is not a sufficiently “substantive statement” to warrant First Amendment protection is similarly wrong. First Amendment protection does not depend on how thoughtful, time-consuming, or “substantive” one’s comments might be, and the Supreme Court—including the members of the current Court—has consistently efforts to limit the First Amendment to speech that is “valuable.” Nor does it matter whether the message in one’s speech is easily decipherable or if “liking” something really means that you truly “like” something, in the traditional meaning of the word “like.” As the Supreme Court vividly explained in one case, the First Amendment protects speech even if the speech does not convey a “particularized message,” because otherwise, its “protection would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll.”
But as wrong as the rationale of this decision is, perhaps the most troubling aspect of the decision is that it illustrates how difficult it still is for judges (and the public) to understand that just because the Internet and social media tools are new, that does not mean they should be treated differently from more traditional forms of communication. Over fifteen years ago, when use of the Internet really was new, the ACLU went to court to establish the principle that speech on the Internet deserves the same First Amendment protections as traditional forms of speech. In its landmark decision, the United States Supreme Court agreed, unanimously (and wisely) holding that Internet speech is entitled to the exact same protections as all other speech.
That is still the law, but as this recent decision shows, we need to keep fighting to ensure that all new forms of speech, including ones most of us haven’t even imagined yet, are protected by the First Amendment, no matter how “different” they may seem.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.