The blogosphere lit up last week when news hit that a federal judge in Virgina held that clicking Like on Facebook did not constitute speech and, as such, was not entitled to protection under the First Amendment. If you really want to get into the merits of this issue then Eugene Volokh, a legal scholar much smarter than I am, has a concise blog post on this point. I expect we’ll see the case reversed within the next year (which will likely be buried because, really, how interesting is it to read an article that says “Court reverses mistake”?).
What I think is more important is this: as social media evolves the biggest legal issue social will likely face is the legal system itself. All three branches of our government were not designed to work quickly. They can move quickly, when pressed, but the systems created by our founding documents and subsequent legislation give more importance to thoroughness than expeditiousness (a word I really like because it’s a longer way of saying faster). That can be a very good thing as we don’t want to overreact to issues and add to the problem.
However, as recent incidents have shown us, it is an issue when our lawmakers and law-interpreters don’t understand the technology at the heart of these problems. Now their lack of understanding is contributing to the problem. A judge in California held in 2011 that CAN-SPAM, the legislation that applies to commercial email and requires clear subject lines and opt-out links, applies to Facebook posts. Another court in New York held that information stored in RAM (your computer’s temporary storage device) should be preserved pending the outcome of a case. Even the Supreme Court had difficulty understanding the difference between a pager and email.
It’s not that technology is now changing our society–that has always been true. What is so dramatically different with social media and technology today is the rate at which the technology is changing. Within the last few centuries you could expect to see major technology shifts perhaps once a generation. Carriage to automobile. Airplane to jet. Phonograph to radio. But once we made the big switch from analog to digital, suddenly all bets were off. Now we see major technology changes every few years. Children born today won’t know VHS tapes, DVDs, or perhaps even Blu-Rays as we transition to streaming videos and digital downloads. Those three major transitions took 15 years total.
To some extent, it’s difficult to blame the judges for not understanding the technology. This is a new world and even if they had the time to learn everything new I’m not sure they could. I’m not sure anyone could.
However, it is still their obligation to learn about things they are ruling upon. And before a judge makes so sweeping a statement as to say that clicking Like isn’t speech, perhaps they should learn what that activity entails or how it compares to the wealth of precedent the Supreme Court and others have already found to be speech. For example, here are some of the activities that have been found to be speech:
- Silently wearing black armbands to protest a war
- Burning a US flag in protest
- Wearing a jacket that says “Fuck the Draft”
Perhaps the judge thought that clicking Like was too easy, too simple to be speech. Or perhaps he thought that people don’t really mean Like when they click the button–that certainly seems true of some people who seem to click Like on a page only to blast the owner.
But cutting against that is the overall usage of the Like button. The vast majority of Facebook users are selective in clicking the Like button. Perhaps it is editorial control, perhaps because they know by clicking the button they are handing over information and endorsement possibilities to Facebook and the page owner. Either way, that’s a choice and a statement. And none of that was considered by the judge. Instead, the judge just said that clicking Like wasn’t speech and moved on without further analysis.
Social Media is just a term we’ve used to describe the fundamental shift in technology. We have gone from technology enabling faster methods of analog communication to creating completely new forms of digital communication and interaction. This is a content revolution. And while it is understandable that older systems may have difficulty comprehending this new wave, it is not excusable.
We have many problems to solve during this transition to the full social media world–issues like privacy and authentication and security. What we don’t need is another, larger problem: that the people who make the rules don’t even understand the game.