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New York City currently maintains one of the lowest crime rates among all major American metropolitan areas. Several decades ago, however, the urban hub of the Empire State found itself in peril as it experienced a devastating rise in violent crime. This upward trend persisted until the early-to-mid 1990s when statistics on crime began to indicate a change for the better. Crime rates in New York City continued to descend until the turn of the millennium when they stagnated, resulting in a plateau of reported crime, which continues to endure. The plummeting crime numbers coincided with an historic ascent in the number of stop and frisks performed by city police officers. The decline in urban crime and simultaneous rise in stop and frisks suggests a correlation between the two phenomena.
The discourse surrounding the stop-and-frisk practices in New York City is dominated by the poignant argument of critics claiming that such practices have been unjustly used as a vehicle for discrimination by the New York Police Department (NYPD). Moreover, particular crime statistics do in fact indicate that stop and frisks carried out by the NYPD have disproportionately targeted people of color. Drawing conclusions based solely on the interpretation of raw data, however, paints an incomplete picture of a complex issue. A more thorough examination of the larger context of urban crime and policing practices suggests that a variety of additional factors account for the racially disproportionate figures.
In Bland v. Roberts,1 the Fourth Circuit held that “liking” a politician’s campaign Facebook page constituted protected speech under the First Amendment.2 In doing so, the court resolved an issue of first impression that interconnects First Amendment jurisprudence with social media’s influence on how people express themselves. The six plaintiffs in Bland are former employees of the Hampton, Virginia Sheriff’s Office, run by Sheriff B.J. Roberts. In November 2009, Roberts was pursuing reelection and running against an employee, Jim Adams.3 Plaintiffs alleged that in the summer of 2009, Roberts learned that they each expressed support for Adams’ campaign. One of the plaintiffs expressed his support for Adams by “liking” his campaign’s Facebook page.4 After winning reelection that year, Roberts reappointed 146 of his 159 full-time employees; the six plaintiffs were not reappointed.5 In March 2011, the plaintiffs filed suit in federal district court, alleging Roberts violated their First Amendment rights when he declined to reappoint them due to their support of Adams in the 2009 election.6
In December 2011, Roberts moved for summary judgment, asserting, among other claims, that the plaintiffs had not adequately alleged protected speech under the Constitution.7 The district court granted Roberts’ motion for summary judgment and, regarding the activity on Adams’ campaign’s Facebook page, concluded that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”8 The court distinguished “liking” a Facebook page from cases where people posted actual statements on a particular Facebook page; the latter determined by the court to be expressions of constitutionally protected speech.9 The court reasoned that “liking” a Facebook page is neither substantive nor a type of statement that has previously warranted constitutional protection, arguing that it would be improper for a court to infer the significance of simply “liking” Adams’ Facebook page without indicia of a specific statement.10 On appeal, the plaintiffs maintained that the district court erred in granting summary judgment and renewed their allegations that Roberts retaliated against them in violation of their First Amendment rights by choosing not to reappoint them due to their support of his electoral opponent.11 Carter, the plaintiff who “liked” Adams’ campaign Facebook page, specifically argued that his “like” was protected speech.
The First Amendment of the U.S. Constitution sets forth that “Congress shall make no law . . . abridging the freedom of speech.”12 Nevertheless, not all speech constitutes protected speech; in fact, there are particular types of speech that are afforded no protection at all. For example, such protection would not extend to a person who falsely shouts “Fire!” in a theater initiating a panic throughout the crowd, nor would it apply to an individual who solicits another person to commit a specific crime.13 The First Amendment affords the broadest protection to the discussion of public and political issues.14 Indeed, one of the principal purposes of the First Amendment is to protect free discussion of governmental matters.15 Political speech is at the heart of what the First Amendment serves to guard; thus, it is afforded the highest level of constitutional protection and receives unique deference.16
The Supreme Court has acknowledged that although the First Amendment applies only to traditional “speech,” the expressive nature of particular actions should also be afforded protection.17 Expressive conduct, falling within the scope of the First Amendment, must be “sufficiently imbued with elements of communication.”18 The Supreme Court has determined that there are a number of symbolic acts that constitute speech and are thus afforded protection under the First Amendment. In 1969, for example, the Court held that wearing black armbands representing disapproval of the Vietnam War was a symbolic expression protected by the First Amendment.19 Subsequently, in 1974, the Court held that hanging an upside down American flag with a peace symbol affixed on it constituted symbolic speech that fell within the scope of the First Amendment.20 Notably, in 1994, the Court held that a citywide ban on almost all residential signs violated the First Amendment, emphasizing the tradition of expressing political views through signs on one’s residence.21 The Court highlighted a two-part analysis to determine what symbolic speech was afforded constitutional protection: is there “[a]n intent to convey a particularized message,” and “in the surrounding circumstances [is] the likelihood . . . great that the message would be understood by those who viewed it[?]”22
While the conduct in the previously discussed cases is far from an exhaustive record of the Court’s recognition of symbolic speech, it serves to illustrate the Court’s practice of liberally interpreting what constitutes protected speech under the First Amendment. Given this trend, it seems appropriate that, in an era of social media, the Fourth Circuit in Bland held that “liking” a politician’s campaign Facebook page constituted protected speech. Facebook, one of today’s most popular social media platforms, has an estimated 1.19 billion monthly active users and 874 million monthly active mobile users worldwide.23 Facebook’s website serves as an “online social network where members develop personalized web profiles to interact and share information with other members.”24 Facebook users share a variety of information on this website including “news headlines, photographs, videos, personal stories, and activity updates.”25 Users publish such information to their own personal user profiles and the information is then accessible by the users’ “friends,” who are other Facebook users within their online network.26
According to Facebook, more than three billion “likes” and comments are posted on its website every day.27 The “like” button, represented by a “thumbs up” symbol, is a way for Facebook users to indicate to other users that they enjoy something that another user posted on the website.28 When a Facebook user “likes” something on Facebook, that user’s name is published beneath the item and a story is published on the user’s timeline.29 “Liking” a particular Facebook page signifies that the user is connecting to that page; the page will appear on the user’s timeline and the user will appear on the page as a person who “likes” that page.30 Further, when a user “likes” a page it may also appear on the user’s “friend’s” News Feeds and other places on Facebook.31
In Bland, one of the plaintiffs visited Adams’ campaign Facebook page and clicked the “like” button. As a result, his name and picture were added to Adams’ campaign Facebook page, and the campaign Facebook page’s name and Adams’ photo was likewise added to this plaintiff’s profile. “Liking” Adams’s campaign Facebook page served as an announcement to all of the plaintiff’s Facebook “friends” and all Facebook users viewing the campaign Facebook page that this plaintiff supported Adams. The Fourth Circuit held that, in understanding the implications of “liking” the campaign Facebook page, it becomes evident that such conduct qualifies as speech.32 The court explained that on the most rudimentary level, clicking the “like” button creates a published statement that the user “likes” something, which qualifies as a substantive statement.33 Here, in the context of the plaintiff “liking” a political campaign Facebook page, it is abundantly apparent that the “like” indicated that the plaintiff approved of Adams’ candidacy.34 The court held that whether the plaintiff “liked” the political campaign’s Facebook page with the click of a mouse or typed out the same message with individual keystrokes was of no constitutional significance.35 Further, the Fourth Circuit stated that while “liking” Adams’ campaign Facebook page constituted pure speech, it was also symbolic expression.36 The “thumbs up” icon that Facebook associates with “liking” a page conveyed the plaintiff’s endorsement of Adams’ candidacy.37 Thus, the Fourth Circuit held that “liking” a political candidate’s campaign Facebook page communicates to people viewing the plaintiff’s profile or campaign Facebook page that the user approves of and supports the candidate—the Internet equivalent of displaying a political sign on one’s front yard.38
The Internet has undoubtedly increased the public’s ability to access information about political candidates and the issues surrounding their campaigns. Social media, in particular, provides political candidates with an effective and cost-efficient platform, which allows the candidates to reach out to, and gain support from, an ample amount of individuals.39 Social media gives candidates the platform and ability to update their supporters on a moment’s notice and develop personal connections with their constituents.40 Arguably, candidates and elected officials who are not using social media are at a disadvantage to those who are because familiarity breeds trust. Moreover, social media websites, such as Facebook, provide a platform that allows voters to become involved in the political process without having to leave their computer screens. Never before has it been easier for people from every corner of the political sphere—from voter to candidate—to communicate their ideas and opinions.
It is critical that courts be insistent that the breadth of the First Amendment encompasses speech created through the use of modern technologies, as many are using social media as their preferred avenue to express their political views and ideas. Print newspaper, radio, and television have given way to the Internet. Social media websites are changing the nature of political campaigns and speech itself. Websites such as Facebook, Twitter, and YouTube are among the most popular websites used for political speech, conversation, and coordination.41 Although the court in Bland properly determined that “liking” a campaign’s Facebook page constitutes speech within the meaning of the First Amendment, it would be naive to assume that First Amendment issues concerning expression on social media have been resolved. It is more likely that Bland will set the stage for courts to consider, if they have not been doing so already, other aspects of social media that should be afforded constitutional protection under the First Amendment. For instance, if “liking” a campaign’s Facebook page is protected under the First Amendment, does that protection extend to merely “sharing” a campaign’s Facebook page?42 It is probable that Bland will serve as a catalyst and model for courts to broaden, rather than redefine, the concept of protected political speech in an age where social media has become embedded in the political process. While the Fourth Circuit in Bland upheld the Supreme Court’s tradition of broadly construing what constitutes protected political speech (including both pure and symbolic), it is crucial that courts continue to do the same in this era of rapid technological progress.
Josephine Unger, Case Note, Thumbs Up: Fourth Circuit in Bland Determines Facebook “Likes” Are Protected Under the First Amendment, 1 Suffolk U. L. Rev. Online 124 (Dec. 6, 2013), http://www.suffolklawreview.org/unger-bland.