Do Judges Really Understand Social Media?

Justice Breyer calls it "the Tweeter." Judge Reggie Walton, charged with overseeing the Roger Clemens retrial, had to ask a juror to explain how the 140-character social-networking service works. And now, Judge Raymond Jackson of the Eastern District of Virginia has proclaimed that Facebook "likes" aren't free speech.

These are just a few of the many examples of the growing disconnect between emerging technology and the aging judiciary. While somewhat expected, the reality is that social networking has become an integral part of our justice system. And it seems that today's judges just don't understand it.

Judge Jackson's Facebook ruling highlights this lack of understanding. After being re-elected, Sheriff B.J. Roberts fired a group of employees who had "liked" his opponent's campaign on Facebook. The group sued on First Amendment grounds, but Judge Jackson denied their claim, writing:

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.

There's no doubt that pressing the "like" button and typing a status update are different. However, this does not mean that "liking" something is any less expressive.

When you "like" something on Facebook, it shows up on your wall and on your profile. Any user will tell you that "liking" something political is a sign of support. It's the equivalent of a digital lawn sign.

Why Judge Jackson didn't come to this conclusion is unclear. But with so many judges showing a lack of understanding of social media, one has to wonder what's going on. Are they not asking questions? Or are lawyers just not explaining things clearly enough?

Related Resources:

• Facebook 'likes' aren't speech protected by the First Amendment, rules judge (Ars Technica)
• Here's What Facebook Sends the Cops When They Subpoena Your Activity (FindLaw's Technologist)
• Should Judges Consider Facebook Posts at Sentencing? (FindLaw's Technologist)