In the case of Bland v. Roberts, an employee was fired for “liking” a campaign lobbying against his boss. The employee claimed the right to free speech, but the judge ruled that in the absence of “sufficient” speech, the case could not proceed to trial. The employee was not reinstated. An ensuing debate revealed that large numbers of individuals felt this judgment would lead to fear and inhibition, and deter free expression of ideas and opinions online—the chilling effect. Ironically, the First Amendment protects symbolic language, even rude gestures such as “the finger.” If it can stretch this far, then surely it is not unreasonable to expect coverage for the Facebook thumbs up. In the context of today’s morphing methods of communication, is the law failing to keep up?
The authors developed a study of Facebook users and devised a First Amendment Scale to examine the value of computer source code communication and its relation to free speech. Four hundred forty-four participants took part. More than half had “liked” political content in the past. Four hypotheses were tested and all proved true:
1. “Like” users most certain of who would see their “like” expected recipients to understand their meaning.2. Those who felt they had sent a message with a “like” were sure that recipients understood.3. Participants believed when using “like” on political content that their posts were constitutionally protected.4. Those using “like” to convey a message believed that this should be protected by the First Amendment.
The most common interpretations for “like” amongst participants were “agree,” “support,” and “generally endorse” a person, place, or idea. Overall, participants believed that a “like” was akin to speech as described in the First Amendment.
The twist in the tale is that on appeal, the Bland v. Roberts judgment was reversed, finding that the thumbs up indeed qualified for protection. “In both offline and online domains, each community of social practice negotiates its own language conventions and creates its own democracy of meaning. The parsing of the First Amendment will continue to be influenced by these communities,” note the study’s authors, Susan H. Sarapin of Troy University and Pamela Morris of the University of Wisconsin—La Crosse. They finish by urging further research on the “chilling effect” and its potential negative impact on freedom of speech online.
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