In the quest for data on anti-administration activists, the Department of Justice requested the “names of an estimated 6,000 people who ‘liked’ a Facebook page about an Inauguration Day protest.” The DOJ has since dropped that specific request, but at a hearing, Assistant U.S. Attorney John Borchert revealed a persisting interest in “likes” of another kind. Borchert reportedly “insisted that liking a particular post — like one showing how to dress in so-called ‘Black Bloc’ attire—could be important to one or more of the roughly 230 felony riot cases the government is pursuing” in connection with the inauguration protests. Borchert thankfully added that merely liking a page is not itself a crime; however, the point that particular likes could be probative of criminal intent stands.
This is not the first time Facebook’s like feature has caused a legal stir. In Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013), several employees of a sheriff’s office in Virginia faced retaliation for supporting the sheriff’s political opponent during an election. One employee had liked the Facebook page of the rival candidate. These circumstances raised First Amendment concerns and compelled the court to consider the like. Ultimately, the Fourth Circuit determined that a like was both pure speech and symbolic expression. The court compared the like in this instance to placing a political sign in a front yard.
The like has been considered abroad. A Swiss court fined a man about $4,100 for liking several defamatory posts on Facebook. The court determined that the man, via his likes, “clearly endorsed the unseemly content, and made it his own.”
But are likes always an endorsement? What does it mean to “like” something on Facebook? What is “a like”? Whether noun or verb, it can be difficult to pin down. A like is clearly expressive, but the exact expression evades clear meaning. Facebook claims that a like signals enjoyment. But imagine a user who likes a post featuring a news article detailing a tragic event, or a user who likes a picture of a friend’s newborn baby. Enjoyment is not necessarily present or conveyed. These likes could equate to acknowledgement, appreciation, or any number of expressions. They may have felt obligatory.
Every like may be identically performed, but the precise meaning of any particular like is highly contextual.
What is being liked? Who likes it? Who posted the content being liked? What is the relationship between the one liking and the one posting?
Can we even say that a like always denotes a positive expression? Perhaps. Last year, Facebook introduced five other “reactions” to accompany the like. The full set (currently “like,” “love,” “haha,” “wow,” “sad,” and “angry”) captures a wide range of emotion. We could rely on the new reactions to limit our interpretation of the like. For example, a user that is both aware of the reaction options and able to use them appropriately may rarely like a post when an “angry” more accurately aligns with their feelings. Facebook’s inclusion of reactions that are more likely to signal negativity (particularly “sad” and “angry”) seems to limit the like to a positive function. However, by the same logic, the like is not “haha” positive, “wow” positive, or “love” positive. The like is merely positive in some unspecified fashion, much like the “thumbs up” that Facebook uses as a symbol for the like.
However, some Facebook users may not be overly careful with their symbolic speech. These users might not care to differentiate between reactions. Several months after the introduction of the full set, the like remained the most popular choice by a wide margin. Thus, it seems that the likes of most users could remain highly ambiguous without additional context. That context could be discussed in court, as it could be in cases involving emojis and emoticons.
Because likes are so dependent on context, we should avoid the hasty establishment or entrenchment of any particular legal interpretation. Vague positivity would probably be fair to assume in most scenarios, but we must allow likes to be interpreted on a case-by-case basis. Of course, whatever meaning a like carries, that meaning will need to be considered within the appropriate legal context. Perhaps the intention behind the like will matter; perhaps a reasonable person’s interpretation of the like will carry more weight. Either way, as we spend more time engaging with each other online, the courts and other legal actors will need to carefully examine our symbolic digital communication.