Feel Free to Dislike This: Facebook to Introduce an Alternative to the Ubiquitous “Thumbs Up”

September 30, 2015

Facebook users rejoice: CEO Mark Zuckerberg announced in a Q&A on September 15th that the world’s largest social network will soon offer users the option to “dislike” others’ posts.  The site already features a “like” button that allows users to affirm content they find pleasing or agreeable.  Facebook has resisted pressure for years, however, to add a corresponding “dislike” button, despite requests from many to do so.  Zuckerberg explained the reason for Facebook’s reluctance during the Q&A, citing a desire to avoid the sort of upvoting and downvoting utilized by social media sites like Reddit.
However, what the dislike button does provide—at least in Zuckerberg’s eyes—is “the ability to express empathy.”

Whereas Facebook users previously lacked a means of adequately responding to sad or negative posts, they will now be able to acknowledge others’ content with something other than a thumbs up.  This may, however, be an overly idealized view of how the dislike button will function in reality.

Although it is hard to critique a move intended to encourage more empathetic interactions, it is naïve of Facebook to ignore the potentially harmful effects of a dislike button.
While it is likely that many will use the dislike button for the same noble ends that Zuckerberg identified, the button’s existence also opens the door for possible cyberbullying attacks.  Zuckerberg himself acknowledged the potential for abuse during a previous Q&A session, stating, “[s]ome people have asked for a dislike button because they want to say, ‘That thing isn’t good.’  And that’s not something that we think is good for the world.  So we’re not going to build that.”
The prevalence of cyberbullying has steadily increased in recent years, and legislators are taking notice.   All fifty states currently have anti-bullying laws on the books, and a growing number—including North Carolina—have expanded their statutes to include cyberbullying as well.  North Carolina General Statute § 14-458.1, as part of a larger article covering various computer-related crimes, expressly prohibits cyberbullying and lays out the resulting legal penalties.  The recent case of State v. Bishop showed the strength, as well as breadth, of this provision.  The court in that case ruled that the North Carolina cyberbullying statute was not an overly broad criminalization of free speech in violation of the First Amendment.  Notably, the ruling also recognized the need to regulate forms of expression outside of speech, citing “a sufficiently important governmental interest in regulating the nonspeech element” significant enough to “justify incidental limitations on First Amendment freedoms.”
The court’s expansion of the North Carolina cyberbullying statute to forms of electronic expression beyond just words opens the door for the sort of lawsuits that might result following the introduction of a Facebook dislike button.  It is not too much of a stretch to envision a predatory attack on an emotionally vulnerable victim in the form of a veritable onslaught of “thumbs down”.  State v. Bishop itself involved cyberbullying via Facebook, and it is easy to imagine the defendant’s derisive comments in that case coming on the heels of a barrage of dislikes on the plaintiff’s personal content.
It is extremely doubtful, however, that merely disliking someone’s activities on Facebook could ever be deemed to rise to the level of a “true threat”, such as would be exempted from protection under the First Amendment.  The highly publicized case of Elonis v. U.S., which dealt specifically with threats disseminated via Facebook, left some question as to the exact criteria for deciding whether a statement constitutes a “true threat”, and also failed to discuss whether the court’s holding was applicable to forms of expression other than words.  Nevertheless, the fact that tormented “dislikees” may lack a clear form of legal redress does not make the prospect of a button expressly built to convey negativity any less unsettling.  To echo the sentiment of many in response to the Elonis decision, “[i]n a world in which men and women find it nearly impossible to agree on what’s an idle threat and what’s a legitimate one” it is difficult, but inarguably vital, to make a clear determination as to where exactly that line lies.  In the meantime, however, Facebook should step back and consider whether introducing a dislike button is truly in their users’ best interests.