Category Archives: On Law

Appeals Court likes “likes,” says they’re speech

The Fourth Circuit Court of Appeals has held that “liking” something on Facebook is speech protected by the First Amendment, reversing a lower court opinion dismissing a suit brought by former employees of a sheriff’s office who lost their jobs after they “liked” the Facebook page of their boss’s opponent in his re-election bid.

Last May, District Judge Raymond A. Jackson held that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” Bland v. Roberts, 857 F. Supp.2d 599 (E.D. Va. Apr. 24, 2012), slip op. at 6, and dismissed the fired employees’ claims.

But after reviewing the nature and consequences of “liking” something on Facebook, the appeals court held that “[o]nce one understands the nature of what [one plaintiff] did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech.” Bland v. Roberts, No. 12-1671 (4th Cir. Sept. 18, 2013), slip op. at 39.

On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance. slip op. at 39-40.

This makes sense. The courts have held that First Amendment protection extends to gestures, signs, and even some actions (“symbolic speech”). A Facebook “like” is no different; depending on the context, it can be an expression of endorsement, approval, or gladness that something was posted. And I’m sure that it can have other meanings that I’m not thinking of. But the point is that pressing the “like” button can, indeed, carry a message that can and should be protected by the First Amendment.

Unfortunately, the Fourth Circuit doesn’t have an official Facebook page to “like.” (Although there’s a page for former clerks.) But you can go to Justia’s Facebook page for Fourth Circuit opinions and like the Bland v. Roberts decision.

By doing so, you’ll be making an expression of support — and enjoy the protection of the First Amendment for doing so.


Eric P. Robinson is co-director of the Program in Press, Law and Democracy at the Manship School of Mass Communication at Louisiana State University.

Upcoming forum focuses on student free expression rights

Mary Beth Tinker, the student suspended for wearing an armband to class to protest the Vietnam War, will speak about student free expression rights at 7:30 p.m. March 11 in a forum at Webster University’s Winifred Moore Auditorium.

Tinker’s suspension became the basis for a lawsuit that went to the U.S. Supreme Court, which decided that student free expression rights do not stop at the classroom door. The logic expressed by the 1969 U.S. Supreme Court did not sway a later court in 1988, which curbed student free expression rights with its Hazlewood decision.

This year marks the 25th anniversary of the Hazelwood case, which originated in St. Louis.

Tinker will be accompanied by a panel of experts on First Amendment law, and they will discuss the impact of the Tinker and Hazelwood decisions.

The event, which is free and open to the public, is co-sponsored by the Society of Professional Journalists (SPJ), Gateway Journalism Review/St. Louis Journalism Review, Gateway Media Literacy Partners and the St. Louis Media History Foundation.


‘Benevolent dictatorships’ lessen First Amendment’s importance

SAN FRANCISCO – The First Amendment is less important today as control of speech passes to private “benevolent dictatorships” such as Google, Facebook and Twitter.

That was the consensus of media lawyers and academics speaking Thursday at a

panel at the Online News Association convention.

“The First Amendment is becoming less relevant today, said David Ardia, a law and journalism professor at the University of North Carolina. The First Amendment does not apply to the private online gatekeepers such as Google and Facebook.

The anti-Muslim film that caused protests and riots in the Middle East this month is an example of the shift in importance from government decisions about free expression to private ones, the experts said.

Pam Samuelson, a law professor at Berkeley, said “the pressure that our government put on Google to block (the movie),” but she noted that Google’s view “was that it was not unlawful in the United States and should be available.”

Added Ardia: “We put a lot of faith in these benevolent dictatorships” such as Google.

The panelists noted that one reason that the online companies favor free expression is that it is good for business. The Web wants information to be free.

But there is a tradeoff to this freedom of information on the Web, they said: the loss of privacy.

“The Web almost has to be free,” said Tony Falzone, deputy general counsel at Pinterest and a fellow at Stanford Law School Center for Internet & Society. “The consequence of that is that everyone has to find a way to make money a different way, and the price of that is privacy.”

Ardia likened privacy on the Web to a “one-way mirror. Advertisers can learn a lot about users, but users do not know how it is being used.”

Some panelists wished consumers could turn their personal information into intellectual property and sell it to the companies they trusted. But others said that, if privacy were property, the firms buying it would just sell it to people the consumer knew nothing about.

Samuelson cautioned against oversimplicity, noting “that there isn’t just one thing called privacy.” Everyone wants to keep others from stealing credit-card information, but not everyone wants to keep advertisers from obtaining information about their searches – information that might channel them more interesting ads.

Added Samuelson: “Privacy is an evolving concept. It is evolving so rapidly, it is hard for publishers to know what to do and advertisers to know what to do.” In addition, she said, the millennial generation doesn’t care as much about privacy as the previous generation.

Sometimes, however, the younger generation is in for a shock. She told of one Berkeley student who got a good job at Cisco Systems Inc. and tweeted to her friends about getting a “fat” salary that went with the job offer. Cisco employees, following tweets about the firm, saw the tweet – and the Berkeley student henceforth has been known at the company as “Cisco fatty.”

Does First Amendment protect ‘Innocence of the Muslims’ film?

Justice Oliver Wendell Holmes Jr. wrote a century ago that free speech didn’t protect a person “falsely shouting fire in a theatre and causing a panic.” Now some news commentators are dusting off that memorable aphorism to suggest the offensive film,

“Innocence of the Muslims,” is not protected by the First Amendment.

The commentators are probably wrong.

Christiane Amanpour put it this way on ABC this week: “There is obviously freedom of expression in this country. There is also a 100-year-old law by the United States Supreme Court which says you can’t [falsely] cry fire in a crowded theater.”

Amanpour is off base for a couple of reasons. Holmes’ line, while colorful and memorable, is not a law. Moreover, Holmes wrote those words in an early First Amendment case where he upheld the conviction of a socialist who circulated leaflets urging men not to comply with the draft during World War I. That kind of speech would clearly be protected today, now that the First Amendment is more robust.

Offensive expression, even burning a Bible or a Koran, would be protected in the same way that burning the American flag is protected speech.

Just because the First Amendment protects the speech does not mean Google must keep it posted to YouTube. The First Amendment applies to the government, not to a private enterprise such as Google.

YouTube took down the movie trailer in Egypt and Libya. Pakistan and Afghanistan also took steps to block it and Indonesia asked that the film trailer be blocked. Otherwise, the trailer remained accessible.

In a statement YouTube said the film trailer was clearly permissible under its terms of service.

“We work hard to create a community everyone can enjoy and which also enables people to express different opinions,” the YouTube statement said. “This can be a challenge, because what’s OK in one country can be offensive elsewhere. This video – which is widely available on the Web – is clearly within our guidelines and so will stay on YouTube. However, given the very difficult situation in Libya and Egypt, we have temporarily restricted access in both countries. Our hearts are with the families of the people murdered in yesterday’s attack in Libya.”

YouTube’s terms of service state: “We encourage free speech and defend everyone’s right to express unpopular points of view. But we don’t permit hate speech (speech which attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status and sexual orientation/gender identity).”

The Justice Dept. announced it was investigating the murders of the 4 embassy personnel in Libya. It was unclear whether that investigation concerned hate crime laws . But prosecution under hate crimes statutes requires a high proof of intent, which could be difficult to muster in this case.

Amanpour commentary:

New York Times story on YouTube:


Illinois General Assembly fails to change controversial law

The Illinois General Assembly failed this month to change the state’s tough eavesdropping law even though federal and state courts have said it violates the First Amendment. Currently, audiotaping without the permission of everyone involved in a con

versation is a felony in Illinois, making it unlawful for citizens to tape encounters with police.

Last month, the 7th U.S. Circuit Court of Appeals ruled that the Illinois law – viewed as the toughest in the nation – could not be enforced as written because it barred recording of public officials’ actions in public. The decision was handed down just before the NATO meeting in Chicago, which attracted large protests and citizen-police confrontations.

A 2-1 majority on the federal appeals court held that the current law likely violates the First Amendment because people probably have a First Amendment right to record the things public officials do in public. Two Illinois state courts have found the law unconstitutional and a federal appeals court in Boston ruled a similar Massachusetts law unconstitutional.

In May, the Illinois House passed a bill to fix the problem by allowing citizens to record police in public as long as the recordings are not altered. But the bill ran into problems in the Senate where the sponsor wants to add provisions to ensure that police can record citizens. The disagreement could not be worked out before the session ended earlier this month.


Limbaugh copyright complaint was actually Fair Use

For a time late last month, Rush Limbaugh succeeded in abusing copyright law to get YouTube to take down a Daily Kos video stringing together the insulting remarks he made about Sandra Fluke, the Georgetown law student who became a featured player in

the contraception controversy a few months back.

The video stitched together short excerpts of Limbaugh calling Fluke a slut and a prostitute who should videotape herself having sex. Limbaugh apologized (sort of) after he began to lose advertisers. But when Daily Kos helpfully put together a greatest hits of Limbaugh’s comments, Limbaugh used copyright law to demand that YouTube take down the video.

When YouTube complied, Internet free speech advocates, such as the Electronic Frontier Foundation, criticized Google for caving. Google quickly reconsidered and reposted the video.

EEF and other lawyers said that Limbaugh’s copyright complaint was “trumped up” and baseless. Under the fair use exception to copyright, snippets of work used as part of criticism are protected from copyright complaints where they do not interfere with the market for the original work.

Joe Martineau, a media lawyer at Lewis Rice in St. Louis, thinks the Limbaugh/Fluke story was blown out of proportion, but that Limbaugh was off base on his copyright claim. Martineau wrote in an email, “…the video was a fair use and that the copyright challenge represents a misuse of copyright law for the purpose of stifling legitimate critical commentary.

“Copyright law is designed to promote the progress of science and the useful arts by providing creators of creative and intellectual works exclusive rights to profit…. Fair use makes it permissible to use limited portions of copyrighted works for education and criticism, providing the use does not serve as an alternative for the work and thereby deprive the creator of his rights to derive economic benefit from the work. That is the case here. The video was for critical purposes and it in no way serves as an alternative to the copyrighted work.”

Martineau adds a humorous note. He says that even Walt Disney, an ardent enforcer of copyrights, didn’t try to stop this funny YouTube piece with snippets of Disney fairy tales.

Missouri takes another shot at Whistleblowers

Last week the Missouri House passed a bill that the sponsor calls the Whistleblower Protection Act. The law actually removes protections from whistleblowers rather than enacting them. This is the latest version of a bill commonly called the Enterpris

e Rent-A-Car bill because the Clayton, Mo. firm has been lobbying to weaken whistleblower protections for the past six years. Earlier versions of the bill have passed but been vetoed by Gov. Jay Nixon.

Enterprise has made weakening whistleblower protections a top legislative priority ever since the firm lost a whistleblower lawsuit filed by its fired corporate comptroller, Thomas P. Dunn. Dunn testified that he was fired after taking the position that Enterprise was not following the accounting principles required of a public company. At the time of the dispute, around the time of the Enron debacle, Enterprise was planning to go public, although it later decided against that course. To go public, it needed Dunn to attest to the company’s adherence to generally accepted accounting principles.

The bill that passed the House last week weakens whistleblower protections in these ways:

– It exempts from coverage the employee of any state or local public body and entities operated by a religious or sectarian groups. The exception for governmental bodies includes state universities and colleges.

– It caps punitive damages that a whistleblower can win at from $50,000 to $300,000 depending on the size of the firm.

– It tosses out the broad whistleblower protections recognized previously by state courts and bars the courts from expanding whistleblower protections in the future.

– It only protects a whistleblower who is punished for warning of a “clear violation of the law.” That means a whistleblower who reasonably believes a practice may violate a law may not be covered if courts ultimately conclude the law violation is not clear.


The bill is sponsored by Rep. Kevin Elmer, a Republican from Christian County. He told a wire reporter that, “We’re trying to balance the rights of individuals and the right to earn a living.”

The 86-66 vote margin by which the bill passed is not big enough to overcome a veto, if Nixon decides to issue one. The bill, HB 2099, is at: