/>iI. Introduction
Social media has become an integral part of society. It is the cornerstone of sharing information. Social media is used in advertisements, heard in conversations, and everything is connected through social media. Many people and businesses alike rely on social media to remain connected with the world. From advertising, to posting pictures and expressing opinions, social networking websites give the public a way of sharing ideas, likes and dislikes, experiences, and so much more.
With these new and improved methods of communicating and connecting with the world comes uncharted territory in the legal field. The law requires some newer interpretations to incorporate these new categories of communication. At a glance, one would have the general understanding that since this area of discussion concerns communications, the constitutional right of freedom of speech granted by the United States Constitution’s First Amendment should apply. However, this is a legal conclusion that deserves a closer look.
Internet speech has become a great focus in the legal field and has attracted a lot of attention from the courts.[i] While there is a plethora of information discussing the general topic of Internet speech, there is very little research discussing what different components of social media are protected under the First Amendment. For example, Facebook allows its users to post comments, update statuses, ‘Like’ content, and send messages, to name a few features.[ii] Each component of Facebook is a different and unique feature but serves the same purpose—each feature is designed to allow communication. However, it is unclear whether these types of communication are all protected under the First Amendment.
This article analyzes the First Amendment freedom of speech right and how far it stretches to protect different types of speech. Part II of this article creates a foundation by laying out the case this article is based upon, the Bland v. Roberts[iii] case, where a Virginia court held that clicking the “Like” button on Facebook is not substantive speech to warrant the protections of the First Amendment right of freedom of speech.[iv] It further discusses what “Likes” and Retweets are. Part III discusses the different types of speech courts have protected in the past. Part IV establishes why “Likes” and Retweets are speech, and therefore should be protected under the First Amendment. Part V concludes.
II. Background
A. Bland v. Roberts
This case involves a Facebook “Like” that resulted in the termination of several employees at a sheriff’s office. The Plaintiffs in this case were several civilian employees and deputy sheriffs in the Hampton Sheriff’s Office in Virginia.[v] The Defendant in this case was the Sheriff of the Office, B.J. Roberts, who was coming up for re-election as sheriff in November of 2009.[vi] As one of the opposing candidates, a former Lieutenant Colonel of the Sheriff’s Office named Jim Adams was also running in the election for the Sheriff’s position.[vii]
When the Sheriff, Roberts, won the election, he terminated the Plaintiffs’ employment at the Hampton Sheriff’s Office.[viii] While the Sheriff claims the termination was a result of the Plaintiffs’ poor performance, the Plaintiffs allege the Sheriff fired the Plaintiffs because they supported his election opponent via “liking” Adams’ Facebook page.[ix] They further allege that when the Sheriff gained knowledge of the Plaintiffs’ support of the opposing candidate via Facebook, a meeting was held in which the Sheriff instructed his employees to “get on the ‘long train’ with him rather than riding the ‘short train’ with his opponent.”[x] The Plaintiffs filed suit against Sheriff Roberts, alleging the Sheriff violated their First Amendment right to freedom of speech.[xi]
Among several issues discussed within the case, this article focuses only on one specific issue: whether “liking” a Facebook page is protected speech under the First Amendment. The District Court held that clicking the “Like” button on Facebook is not protected under the First Amendment.[xii] The Court dismissed the idea of a Facebook “like” as speech rather quickly, stating that merely “liking” a Facebook page is not sufficient speech.[xiii] The Court declared that “liking” a Facebook page is not the same type of substantive speech that the First Amendment was intended to protect.[xiv] Without an actual statement made by the Facebook user, the click of the “Like” button on Facebook is not enough, according to the District Court, to merit the protections of the Constitution.[xv]
B. Facebook
Facebook is a social networking website connecting people, businesses, and organizations around the world. Facebook is the world’s largest social networking website, with over one billion members.[xvi] The more people who join Facebook, the easier it becomes for users to connect with friends and communicate on a broad level.
Facebook allows users to create web page profiles that include pictures, statuses, videos, notes, comments, and much more.[xvii] Friends can be added to the Facebook profile, keeping the two pages linked.[xviii] Facebook offers a unique interface feature called the “Like” button, which is easy to find and use. It is a thumbs up button activated with the simple click of the computer mouse button. Once the “Like” button is activated, the user’s profile updates with the message: “[User’s Name] Likes This.” and the same message appears underneath the content liked.[xix]
The “Like” button on Facebook allows users to remain connected with the content the user “liked.”[xx] Further, it allows users to express an interest in the content being “liked”.[xxi] The click of the “Like” button can be interpreted in many different ways. The most common usages of the “Like” button are to express interest or enjoyment in the content or as a method of staying connected with content.
C. Twitter
Twitter is another social networking website that aims at keeping the world connected. Twitter has similar social features that allow users to share small pieces of information called Tweets.[xxii] These tweets are posted on a user’s profile page within the Twitter website. One way of sharing information on Twitter is by the use of Twitter’s Retweet function. Comparable to Facebook’s Like button, Retweeting gives users the opportunity to repost information previously tweeted by another user by the simple click of the Retweet button.[xxiii] Thus, Twitter users can communicate their own original tweets and can also share or republish comments made by someone else.
III. Speech the First Amendment and Courts Have Protected
The First Amendment of the United States Constitution falls under the Bill of Rights, which protects the individual rights of people from the federal government.[xxiv] The interpretation of the First Amendment is often disputed. Many theories, articles, and judicial opinions attempt to assist with interpreting the First Amendment, but no completely satisfactory meaning of the words “Congress shall make no law . . . abridging the freedom of speech . . .”[xxv] has yet been adopted.
A. First Amendment Overview
The First Amendment contains one powerful sentence:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[xxvi]
The history and understanding of the First Amendment freedom of speech works its way back all the way to ideas principally based from Sir William Blackstone, one of the earliest advocates of freedom of speech.[xxvii] Blackstone wrote: “Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press.”[xxviii] This idea has been carried throughout the history of the First Amendment and has remained the underlying basis of the First Amendment.
The progression of First Amendment freedom of speech rights has been steady.
Along with crucial fluctuations in the specific rules relating to speech and press rights, the Court moved from an attitude that was extremely accepting of governmental repression to a model of overall tolerance for expression and personal association with others. At the beginning of the last century, the Court remained entrenched in Blackstone's world, in which the only limitations on governmental power over speech and press related to prior restraints. A hundred years later, it had adopted the view of Holmes' Abrams dissent, “[t]hat the hallmark of the protection of free speech is to allow ‘free trade in ideas.’”[xxix]
Although the First Amendment has undergone some very serious developmental stages to get to where it is today, there remains plenty room for development. Many assert that the Constitution is a living, breathing document, and this certainly stands true for the First Amendment.[xxx] The First Amendment remains a mystery to most people.
First Amendment law is more than ever a labyrinth. For students, lawyers, and judges alike, it is difficult even to identify—much less to distinguish and apply—the various strands of applicable precedent. This is because the Supreme Court has developed a dense mass of overlapping doctrines: drawing distinctions between content-based and content-neutral restrictions; drawing further distinctions between fully-protected and “low-level” categories of expression; creating separate bodies of precedent (overbreadth, vagueness and prior restraint) that focus on impermissible methods of regulation; requiring particular solicitude for controversial speakers (the “hostile audience” cases); and creating special rules for special settings (the public forum doctrine and the discrete lines of precedent governing students, soldiers, prisoners, and public employees).[xxxi]
Despite any confusion First Amendment law may cause, there are some concepts that remain clear. For example, the First Amendment is considered to be an immunity,[xxxii] as, in the context of this article, it provides the right to exchange and receive information.
The First Amendment provides three dimensions of immunity.[xxxiii] As an immunity, it protects Americans from infringements by Congress.[xxxiv] Congress cannot create a law contrary to the First Amendment.[xxxv] Second, this protection from infringement by Congress is absolute.[xxxvi] The First Amendment’s absolute protections derive from the Framers usage of the word “shall,” giving Congress no leeway to infringe the rights enumerated through any exceptions and the rights are not “qualified by exceptions for time, place and manner regulations.”[xxxvii] Finally, an immunity categorizes the behavior it protects.[xxxviii] This is where the First Amendment leaves room for interpretation; based on the way the First Amendment is drafted, it is clear that speech is the category of behavior the amendment is designed to protect. However, the Constitution does not define what constitutes speech, which has left the courts to interpret the word speech and what different forms of communication fall under the First Amendment protection.
The First Amendment gives society the right to exchange information. In 1969, the United States Supreme Court stated that the American way of life, the core of America’s free society is hinged on the American people’s right to “receive free information and ideas, regardless of their social worth.”[xxxix] The Supreme Court reiterated that very same opinion in various cases: in 1972, the Court stated that the First Amendment protects the right to receive information and ideas;[xl] in 1973, the Court gave minors the same rights as adults in receiving information;[xli] in 1978, the Court protected public access to discussion, debate, and the dissemination of information and ideas under the First Amendment;[xlii] in 1980, the Court established the public’s right receive access and information pertaining to criminal trials.[xliii] Speakers, listeners, and receivers of information alike are protected by the First Amendment freedom of speech right. The right to free speech rests at the core of America and her society.
The expansions and developments of the First Amendment have led to protections of pure speech, symbolic speech, distasteful speech, Internet speech, ambiguous speech, and so much more.
B. Judicial Historical Interpretations
In the Bland v. Roberts case, the Court held that in order for the First Amendment to apply to speech, the speech is required to be an actual statement and have substantive value to it otherwise the First Amendment simply does not apply.[xliv] This premise is a misstatement and mischaracterization of the First Amendment. It completely disregards the centuries of development the First Amendment has endured. This premise does not keep the First Amendment as living and breathing; instead, it freezes the freedom of speech in time and this simply cannot be permitted given the First Amendment’s extensive progress the First Amendment.
1. Protected Speech
The word “speech” is expressly built into the First Amendment. Merriam-Webster dictionary defines speech as “the communication or expression of thoughts in spoken words.”[xlv] There is a critical test that has been applied throughout history to determine whether ‘speech’ is worthy of protections under the First Amendment. In Spence v. State of Washington, the Court determined speech was the “intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.”[xlvi] Not only must the sender intend to send out a message, the receiver must be able to understand the message that was sent.
Protected speech comes in different forms. For example, conduct is protected under the First Amendment.[xlvii] However, not merely any conduct is considered speech; the conduct must be “inherently expressive.”[xlviii] Distasteful speech is also protected.[xlix] Internet speech has been afforded the protections of the First Amendment.[l] Freedom of speech rights even reach as far as protecting ambiguous speech.[li]
2. Symbolic Speech
The First Amendment protects symbolic speech. Symbolic speech categorizes the speech that is not verbal; it is the gestures or actions that are intended to communicate a message.[lii] The first case of the protection of symbolic speech was demonstrated by the Supreme Court in 1931 in the Stromberg v. People of State of California.[liii] Per a California statute, a person displaying a red flag in opposition to the government where the public can see it is guilty of a felony.[liv] Yetta Stromberg was found guilty of violating this statute by California courts, but the United States Supreme Court reversed the California courts on the grounds that free political discussion is the “fundamental principle of our constitutional system.”[lv]
In Texas v Johnson, Gregory Johnson burned an American flag during a political demonstration to protest against the Reagan administration.[lvi] The conviction of the Texas courts was reversed by the Supreme Court; the Court held that the act of burning the American flag constituted expressive conduct and was protected under the First Amendment.[lvii]
In Tinker v. Des Moines Independent Community School District, the Des Moines schools put in place a policy prohibiting students from wearing black armbands in opposition of the Vietnam war; Mary Beth, Christopher, and John Tinker all wore black armbands to school and were suspended until they agreed to return to campus without the armbands.[lviii] The Supreme Court held that the wearing of the armbands is symbolic speech and thereby is protected under the free speech clause of the First Amendment.[lix]
3. Distasteful Speech
In Snyder v. Phelps, a military service member, Marine Lance Corporal Matthew Snyder, was killed in Iraq fighting for the United States of America. Albert Snyder, the grieving father of the soldier, sued Westboro Baptist Church for picketing near his son’s funeral. The picketers displayed signs with disturbing anti-military soldier and anti-homosexual messages, only to name a few.[lx] The picketing took place near the funeral but did not interfere or otherwise disturb the funeral.[lxi] The father saw the tops of the signs on his way to the funeral, but did not actually see the messages on the signs until he turned on the news later that night.[lxii]
The Supreme Court ultimately decided that the Westboro picketers were protected by the First Amendment freedom of speech right.[lxiii] Further, the court stated that whether speech is inappropriate or controversial is irrelevant when dealing with speech of public concern.[lxiv]
4. Internet Speech
The Supreme Court has focused on hearing and deciding cases in furtherance of the law as it relates to the new and ever-changing technological advancements of our time. In its decisions, the Court has decided the speech that occurs on the Internet should be afforded the same level of freedom of speech protection as the traditional forms of speech.[lxv]
In Universal City Studios, Inc. v. Corley, Eric Corley posted hyperlinks to other websites on his own website.[lxvi] The Court described a hyperlink as a connection from one web page to another that is activated by the point-and-click of a mouse.[lxvii] The Court reasoned, “[c]ommunication does not lose constitutional protection as ‘speech’ simply because it is expressed in the language of computer code.”[lxviii] Thereby, the posting of hyperlinks is protected by the First Amendment.[lxix]
In T.V. ex rel. B.V. v. Smith-Green Community School Corp., a 15- and 16-year-old posted raunchy photographs on the Internet during a sleepover.[lxx] The school the teenagers attended discovered the photographs and suspended the two girls from school.[lxxi] The Court held that the photographs posted on the Internet by the teenage girls were “inherently expressive” and, therefore, are protected by the First Amendment.[lxxii]
In J.C. ex rel. R.C. v. Beverly Hills Unified School District, J.C., a high school student, posted a video clip on Youtube.com.[lxxiii] The video clip included distasteful comments about a fellow student.[lxxiv] The school was involved by the victim of the video and discovered that J.C. posted the video clip and suspended J.C. from school.[lxxv] The Court held that posting the video clip on the website is protectable under J.C.’s First Amendment rights.[lxxvi]
5. Ambiguous Speech
In Morse v. Frederick, the Olympic Torch Relay race was to pass in front of Juneau-Douglas High School; the school permitted students and staff to observe the relay during school hours.[lxxvii] During the event, Frederick, a high school student, held up a banner that read, “Bong Hits 4 Jesus,” on a 14-foot banner.[lxxviii] The school took disciplinary action against Frederick and suspended him from school.[lxxix] Frederick filed suit against the school claiming the school violated his First Amendment right, freedom of speech.[lxxx]
The Supreme Court admitted that the message on the banner was “cryptic.”[lxxxi] The Court spent some time discussing possible meanings of the message, if there was a meaning behind that message at all.[lxxxii] The Court did not discover a clear meaning of the message displayed on the banner.[lxxxiii] Despite not being able to decipher the coded message and grappling with its possible meanings, the Court never considered the cryptic message to be anything but speech. It was clear that the message was speech from the beginning, even though the message was never understood by the Court.
IV. Applying the Protection of the First Amendment to Facebook and Twitter
A. Applying the Protections of the First Amendment to the Facebook Like Button
No matter how the First Amendment is interpreted in this case, a Facebook “Like” fits the profile for freedom of speech protections. What has been demonstrated thus far is that courts protect expressive and symbolic conduct, distasteful hate speech, Internet speech, and even ambiguous speech. Similarly, clicking the “Like” button on Facebook should certainly be covered under the First Amendment freedom of speech protections. Pressing the “Like” button contains several elements that have already been deemed protected by the courts. Clicking the “Like” button is inherently expressive conduct; it is symbolic conduct; it may be ambiguous speech; and it is Internet speech.
Even if courts cannot comfortably consider clicking the “Like” button to be pure speech, the courts should have no problem considering it to be, at minimum, conduct that is protected by the First Amendment. Wearing armbands to school, hanging a flag, and even burning a flag are all forms of expressive conducts designed to show and share an opinion, an idea, a statement. The Facebook “Like” button does exactly the same. Pressing the “Like” button of Facebook lets the user’s friends know about content the user is interested in, enjoys, supports, or approves. The intent behind pushing the like button is to share those expressions. Those who view the user’s “liked” content are fellow Facebook users. Fellow Facebook users understand what it means to “like” content on Facebook. The thumbs up, “Like” button is widely understood in the realm of Facebook.
Those opposing the idea that clicking the Facebook “Like” button would argue that clicking the “Like” button does not always convey the message, “I like…” because sometimes the “Like” button is used as a connection to a Facebook business page or advertisement. Sometimes a Facebook user “Likes” a business’s Facebook page to enter a sweepstakes promotion or to become eligible for a coupon or discount. It is argued that clicking the “Like” button under these circumstances does not convey the same message of approval, enjoyment, or support and therefore, clicking the “Like” button on Facebook is not speech warranted the protections of the First Amendment.
This argument is addressed by the clarity argument. When a message can be deciphered in multiple ways, as was the issue in the Morse case, it does not make the message any less than speech. The Court made it clear; a message is still speech, even if it not understood. It is irrelevant how substantive the comment may be; the First Amendment is designed to protect communication regardless of how boring, ambiguous, or distasteful the information expressed may be. Speech that is inherently expressive is protected, and clicking the “Like” button is inherently expressive conduct.
The “Like” button is a symbol. When a Facebook user clicks the “Like” button, the user has engaged in an action to communicate a message. The message can be one of approval, enjoyment, or support. Even though the click of the “Like” button is a nonverbal form of communication, it is nonetheless a form of symbolic speech as it is an action that is intended to communicate a message.
In the Bland case, the Plaintiffs maintain that the reason they were terminated from the Sheriff’s Office was because they “liked” the Sheriff’s opponent’s Facebook page, and the Sheriff found out about it.[lxxxiv] In other words, the Sheriff did not approve of his employee’s “liking” his opponent’s Facebook page, so, he fired them. The First Amendment has gone as far as to protect the right to freedom of speech for picketers displaying anti-military message at a deceased military member’s funeral.[lxxxv] Surely, “liking” an election opponent’s Facebook page is nowhere near as distasteful as Westboro’s speech, even if it was contrary to the Sheriff’s tastes.
The posting of raunchy photographs, uploading videos, and posting hyperlinks are all protected under the First Amendment as speech. The “Like” button is no different from the already protected types of Internet speech. Internet speech begins with the idea of sharing information, sharing expressions. The Facebook button falls under these categories. Further, the “Like” button is in the form of a hyperlink that causes a story to be added to the user’s Facebook page. It is also activated by a single click, exactly like the hyperlink. The ease of activation should have no bearing on whether the clicking the “Like” button falls under the category of protected speech. No matter how small of an act clicking the “Like” button is, it does not make it any less of a statement or a communicated message.
Finally, ambiguity or lack of clarity in the message a “like” conveys is irrelevant when determining whether the “Like” button should be protected as speech. The fact that the message is unclear to some recipients does not render the message as non-speech. At no point has an ambiguous message been disregarded as non-speech simply because the meaning behind the message could not be determined.
The Facebook Like button clearly provides the world with a form of communication—simple, but speech nonetheless. The Supreme Court has protected various forms of communication, and clicking the “Like” button of Facebook should be included in what has thus far been protected. The message conveyed when the “Like” button is clicked is a symbolic Internet expression in the form of conduct. The Facebook “Like” button is speech that deserves all the protections of the First Amendment freedom of speech right.
B. Applying the Protections of the First Amendment to Twitter Retweets
Twitter Retweets button provides two things: a quick, one-click method of communication and a hyperlink for access to the original poster’s tweets. The Twitter Retweet function should also be protected under the First Amendment as speech. While a Retweet does not contain original thoughts from the poster, the message a Retweet sends is that the Twitter user supports, enjoys, or approves the contents of the message being Retweeted.
The Retweet is similar to a hyperlink in the sense that it provides the quick, one-click function of sharing content. The Retweet conveys a message, and those that are intended to receive the message, understand what a Retweet is and how it is used.The Retweet’s message may also at times be ambiguous or confusing, but as discussed above, the clarity of the content renders the message no less than speech.
C. The United State Court of Appeals, Fourth Circuit
The Bland District Court decision was appealed to the Fourth Circuit.[lxxxvi] In its rather lengthy opinion, the Fourth Circuit addressed the issue of whether the Plaintiff’s act of clicking the “Like” button was speech worthy of First Amendment Protections. The Court held, rather quickly, that “liking” a Facebook page was pure and symbolic speech.[lxxxvii] The Fourth Circuit absolutely made the correct decision for all the reasons discussed in this article.
V. Conclusion
It is important for the Facebook Like Button and Twitter’s Retweet function to be protected under the First Amendment because these are new and advanced methods of communication that technology has created. Without protecting these forms of communications, there runs the risk that American citizen’s rights will be infringed. This can be avoided by applying the correct principles to the new forms of communication, and protecting what the Framers of the Constitution intended to protect: the core of American society, the freedom of speech and expression. The Facebook Like button and Twitter Retweets are types of speech that the United States Constitution First Amendment freedom of speech clause is designed to protect. The Constitution is a living and breathing document, and as such, there is plenty room to protect Like buttons and Retweets.
[i]See e.g. United States v. Am. Library Ass'n, Inc., 539 U.S. 194 (2003) (Children’s Internet Protection Act does not violate First Amendment free speech rights); Wisniewski v. Board of Educ. of Weedsport Cent. School Dist., 494 F.3d 34 (2d Cir. 2007) (held the school did not violate a student’s First Amendment free speech rights by suspending him for instant messaging a classmate with a picture of a pistol firing at a person’s head captioned with the word “kill” followed by a teacher’s name because it would disrupt school); Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010) (held it was not a First Amendment freedom of speech violation for Utah to require, by statute, registered sex offenders to report their “online identifiers”); Nickolas v. Fletcher, 2007 WL 1035012 (E.D. Ky. 2007) (a blogger who criticized senior government officials brought suit to prevent the government from blocking blogging websites on government computers); Beussink ex rel. Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175 (E.D. Mo. 1998) (protected a student’s vulgar criticism of school as online speech from a home computer and personal website).
[ii]See Facebook, www.facebook.com.
[iii]Bland v. Roberts, 857 F. Supp. 2d 599 (E.D. Va. 2012).
[iv]Id. at 603.
[v]Id. at 601.
[vi]Id.
[vii]Id.
[viii]Id. at 601–02.
[ix]Bland, 857 F. Supp. at 602.
[x]Id. at 601 (quoting Compl. ¶ 22).
[xi]Id. at 602.
[xii]Id. at 603.
[xiii]Id. at 604.
[xiv]Id.
[xv]Bland, 857 F. Supp. at 603.
[xvi]All About Facebook, Goodwill Community Foundation, http://www.gcflearnfree.org/facebook101/1.2 (last visited Mar. 8, 2014).
[xvii]Facebook, www.facebook.com
[xviii]Id.
[xix]Like, Facebook, http://www.facebook.com/help/452446998120360/ (last visited Mar. 8, 2014).
[xx]Id.
[xxi]Id.
[xxii]Twitter allows users to Tweet “small bursts of information.” Twitter has limited each Tweet to 140 characters per Tweet. About, Twitter, https://discover.twitter.com/learn-more#tweet (last visited Mar. 8, 2014).
[xxiii]Frequently Asked Questions About Retweets (RT),Twitter, http://support.twitter.com/groups/31-twitter-basics/topics/109-tweets-messages/articles/77606-faqs-about-retweets-rt# (last visited Mar. 8, 2014).
[xxiv]Adamson v. People of State of California, 332 U.S. 46, 51 (1947); Feldman v. United States, 322 U.S. 487, 490 (1944); Barron v. City of Baltimore, 32 U.S. 243, 250 (1833).
[xxv]U.S. Const. amend. I.
[xxvi]Id.
[xxvii]Michael Kahn, The Origination and Early Development of Free Speech in the United States A Brief Overview, Fla. B.J., October 2002, at 71; Stewart Jay, The Creation of the First Amendment Right to Free Expression: From the Eighteenth Century to the Mid-Twentieth Century, 34 Wm. Mitchell L. Rev. 773, 783 (2008).
[xxviii]William Blackstone, Commentaries on the Laws of England bk. 4, ch. II, 151 (1765–1769).
[xxix]Jay, supra note xxvii, at 1017.
[xxx]This is but one theory of interpreting the Constitution. One theory is that the Constitution evolves, adapts, and changes with the times without formal amendments. Scott Dodson, A Darwinist View of the Living Constitution, 61 Vand. L. Rev. 1319, 1324 (2008). “The incorporation of recognizable traits of living (and sometimes human) organisms deepens the general metaphor. The ‘living’ Constitution was ‘born,’ it was ‘nurtured’ as it ‘developed’ into ‘maturity,’ and it continues to ‘grow’ with society. Its provisions have a capacity to ‘adapt’ to social changes.” Id. (footnotes omitted). Another theory headed by what are called originalists, believe the Constitution should have been frozen in time, should be interpreted with the meanings as adopted in 1791, and can only be amended with formal amendments. See Sally K. Hilander, Justice Scalia Debunks the "Living Constitution" Theory, Mont. Law., October 1998. This article focuses the importance of the Constitution being a living, breathing document to adapt to the technology available today.
[xxxi]Kevin Francis O'Neill, A First Amendment Compass: Navigating the Speech Clause with a Five-Step Analytical Framework, 29 Sw. U. L. Rev. 223, 225-26 (2000) (footnotes omitted).
[xxxii]See The Honorable John Paul Stevens, The Freedom of Speech, 102 Yale L.J. 1293 (1993).
[xxxiii]Id.
[xxxiv]Id.
[xxxv]The general rule is that Congress cannot infringe on a citizen’s freedom of speech, however, there are instances in which the government may restrict some speech. This requires the government to justify its infringements. Six specific scenarios have been outlined in which it is acceptable for government to regulate speech: government may limit a person’s message, application of a law may put some sort of restriction on speech although the law is neutral on its face, a law may place limits on the time and place of speech, limit demonstration locations, regulate government employee speech, and place conditions on a government grant. Jay, supra note xxvii, at 1018.
[xxxvi]Stevens, supra note xxxii, 102 Yale L.J. 1293; Van Alstyne, A Graphic Review of the Free Speech Clause, 70 Cal. L. Rev. 107, 111 (1982).
[xxxvii]Stevens, supra note xxxii, at 1295.
[xxxviii]Id.
[xxxix]Stanley v. Georgia, 394 U.S. 557, 564 (1969).
[xl]Kleindienst v. Mandel, 408 U.S. 753, 762–63 (1972).
[xli]Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975).
[xlii]First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978).
[xliii]Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980).
[xliv]Bland v. Roberts, 857 F. Supp. 2d 599, 604 (E.D. Va. 2012).
[xlv]Speech, Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/speech (last visited Mar. 8, 2014).
[xlvi]Spence v. State of Wash., 418 U.S. 405, 410–11 (1974).
[xlvii]E.g., Texas v. Johnson, 491 U.S. 397 (1989).
[xlviii]Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 65 (2006).
[xlix]Snyder v. Phelps, 131 S. Ct. 1207 (2011).
[l]Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).
[li]Morse v. Frederick, 551 U.S. 393 (2007).
[lii]W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632, 63 S. Ct. 1178, 1182 (1943) (“Symbolism is a primitive but effective way of communicating ideas.”); Chalifoux v. New Caney Indep. Sch. Dist., 976 F. Supp. 659 (S.D. Tex. 1997).
[liii]Stromberg v. People of State of Cal., 283 U.S. 359 (1931).
[liv]Id.at 361.
[lv]Id.at 369.
[lvi]Texas v. Johnson, 491 U.S. 397 (1989).
[lvii]Id. at 397.
[lviii]Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504 (1969).
[lix]Id.at 740.
[lx]Snyder v. Phelps, 131 S. Ct. 1207, 1210 (2011).
[lxi]Id.at 1212.
[lxii]Id.at 1210.
[lxiii]Id.
[lxiv]Id.at 1211; Rankin v. McPherson, 483 U.S. 378 (1987).
[lxv]Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997); see also Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004).
[lxvi]Universal City Studios, Inc. v. Corley, 273 F.3d 429, 436 (2d Cir. 2001).
[lxvii]Id.at 455.
[lxviii]Id.at 446.
[lxix]Id.
[lxx]T.V. ex rel. B.V. v. Smith-Green Cmty. Sch. Corp., 807 F. Supp. 2d 767, 771 (N.D. Ind. 2011).
[lxxi]Id.
[lxxii]Id.at 776.
[lxxiii]J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1098 (C.D. Cal. 2010).
[lxxiv]Id.
[lxxv]Id.
[lxxvi]Id.at 1117.
[lxxvii]Morse v. Frederick, 551 U.S. 393, 397 (2007).
[lxxviii]Id.
[lxxix]Id.
[lxxx]Id.at 399.
[lxxxi]Id.at 401.
[lxxxii]Id.at 401.
[lxxxiii]Morse, 551 U.S. at 401–03.
[lxxxiv]Bland v. Roberts, 857 F. Supp. 2d 599, 601 (E.D. Va. 2012).
[lxxxv]Snyder, 131 S. Ct. at 1220.
[lxxxvi]Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013).
[lxxxvii]Id. at 386.
