This is an interesting one.
[Roberts'] knowledge of the posts only becomes relevant if the court finds the activity of liking a Facebook page to be constitutionally protected. It is the court’s conclusion that merely "liking" a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.
I don't agree that Facebook 'likes' aren't a form of 'speech' (at least where speech is defined as an expressive act). Nor does Ars Technica. But the point about 'insufficient speech' is interesting, because Facebook 'likes' suffer from various problems of expression.
Lots of users know the quandary you get into if you want to respond to a piece of ambiguous news. For example, if I post, 'Got burgled, but thank God my insurance covered it', or 'Turns out I need a new liver, thankfully the waiting list is short', is it appropriate to like that? There's a problem of 'insufficient speech' there. Likes on page posts appear to be binary - you like, or you don't.
In fact, likes have high pragmatic variance. As the giver or receiver of a like, you're as dependent on intepretation as you are on fact. If I tell a hilarious story and you like it, I infer that you found it funny. If I tell you about my struggles against adversity and you like it, I infer that it's the equivalent of a pat on the back, a little note of support. If I post a photograph of my dinner and you like it, I infer that you think it looks delicious. But if I post a photograph of a sunset or a close-up of a beetle, and you like it, I infer that you're giving props to my photography skills. The same is true of not liking. If you don't like my post, I normally don't infer that you dislike it - I'm likelier to assume that you just haven't seen it, though either is possible. So likes are binary in form but not in usage.
Likes of pages are a slightly different story. The range of options is more restricted. When you like a single post, you are making a speech-act (like) in response to a speech-act (post). When you like a page you are making a speech-act in response to a whole class of speech-acts: everything the owner of that page posts now and in future. In that sense it's a speech-act that's also a bet. You're betting that the future posts from that page will be in some way of interest.
But what kind of interest? I 'like' several Facebook pages - but not all of those likes are equal endorsements. There are pages for organisations I support; pages for clients I work for; pages I actually administer; and of course pages of clients' competitors. Though Facebook says I like these, from my point of view I am merely following them. I use liking for competitive intelligence.
So it's no surprise to me that some staffers 'liked' their boss's rival's Facebook page. I'm not saying this is what happened here - but it should be considered. The problem is not that likes constitute 'insufficient speech' to warrant protection. On that count, I entirely disagree. The problem is that likes are ambiguous speech. They provide an insufficient basis for interpretation.
In the old joke about the perils of binary speech, there's no good 'yes/no' answer to the question, 'Do you still beat your wife?' On Facebook, you either like something, or you don't. Until they introduce 'laugh', 'support' and 'stalk' buttons, we can't make out-of-context judgements about the meaning of a like. And even if we can, they are still speech-acts within the network, and merit protection.
# Alex Steer (29/04/2012)