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This Critical Debate is part of a Debate Comparison:

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Duration
30-60 minutes
Topic(s)
  • Constitution
  • Elections
  • Politics
Grade(s)
  • 7-12
  • College/University

THE CASE

You are an attorney who specializes in defending First Amendment freedoms. A potential client has contacted you about his case. The client is a former sheriff’s deputy who says he was fired because he supported his boss’s opponent in the recent sheriff’s election. In particular, the client says his boss found out that he “liked” the Facebook page of the opposing candidate in the race.

The former deputy assures you that he “liked” the page when he was off-duty and using his own computer and that he did not violate any department rules. His boss found out because the candidate’s page was public. The former deputy says his First Amendment rights were violated because he believes he was dismissed for exercising his freedom of speech.

You want to defend the potential client’s freedom of speech, but this case is heading into uncharted territory. There are few clear rulings yet on how free speech should apply to social media, and you’re not sure if you can convince a judge that “liking” something should qualify as a form of speech. You don’t want to risk losing the case and getting a bad ruling that limits free expression online.

Should you take the case?

  1. Yes. This action may not be a traditional expression of free speech, but it deserves First Amendment protection.

    Ideas can be expressed in many ways, including through speech, action or behavior. The “like” button on Facebook is designed to allow a user to show approval, endorsement or agreement and therefore sends a meaningful message.

  2. No. This action was not significant enough to make the argument that it deserves to be First Amendment protected free speech.

    Simply clicking a button sets too low a bar for what counts as speech. As well, interpretations of what that action means may vary, making it unclear what the statement of this “speech” would be.

     

  • What does clicking a “like” button mean? What about other social media actions, such as making something a favorite, following someone or using other reactions or emojis?
  • Does everyone agree on what social media actions mean? Should agreement be required for them to be protected?
  • What is symbolic speech? Does this action qualify?
  • How do you express yourself online? What actions would you want to be protected by the First Amendment?
  • The First Amendment generally gives greater protection to political speech that conveys a message or makes an argument. Which actions online do or do not meet this standard?
  • How would you convince the judge that this action should rise to the level of being First Amendment protected free speech?
  • How might attorneys on the other side try to argue against this action being free speech?

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