Facebook argues 'Like' statements qualify as matters of public interest

Steve Korris Aug. 4, 2011, 11:34am



EAST ST. LOUIS – Facebook friends engage in free speech when they tell each other what they like, Facebook owners argue in a suit accusing them of exploiting children.

"Expressions of consumer opinion, such as the plaintiffs' Like statements challenged here, have repeatedly qualified as matters of public interest under the First Amendment," Matthew Brown of San Francisco wrote for Facebook on Aug. 1.

He asked U.S. District Judge Patrick Murphy to dismiss a suit Stephen Tillery filed in June on behalf of parents Melissa Dawes and Jennifer DeYong.

"When a user says he or she Likes certain content, whether it is the Facebook page of a brand, a service, a politician, or a cause, that user is communicating to his or her Facebook friends an affinity for content that the user's friends have an interest in receiving," Brown wrote.

"In such a circumstance, the free flow of information from the speaker to the audience receiving the communication is indispensable.

"Facebook provides a forum for authentic endorsements by persons who, without pecuniary motive, have expressed their approval of a particular product, service, or cause.

"This serves a particularly valuable public interest because the information is republished only to the user's friends – persons for whom a user's opinion may be of particular interest, and with whom the user has already decided to share that information."

He also urged Murphy to dismiss the complaint because Tillery failed to specify what law Facebook broke.

He wrote that "vague references to unspecified state law render their claims unintelligible."

"They allege that Facebook used their names and likenesses for the purpose of marketing, advertising, selling, and soliciting the purchase of goods and services," Brown wrote.

"Plaintiffs do not allege that they Liked or shared any content with their friends on Facebook, nor that their profile pictures actually contained their likenesses.

"Plaintiffs do not allege that their personal information had any ascertainable value or any facts supporting the claimed lessening of that value."

He wrote that they mentioned laws of five states but didn't set forth elements those laws required to prove violations.

"Plaintiffs' mere mention of five different state statutes amounts to no more than a conglomeration of legal theories," Brown wrote.

"Plaintiffs do not allege which advertisements their names or likenesses were purportedly used in connection with, nor when the advertisements appeared."

He wrote that a user who has shared content with friends for free can't claim to be owed money for republication of the same content to the same people.

He wrote that a federal judge in San Francisco dismissed a similar suit in June.

He wrote that the judge found plaintiffs must plead mental anguish.

"Plaintiffs here have pled neither mental anguish nor a plausible supporting factual basis for any such assertion," Brown wrote.

Jeffrey Gutkin, an associate of Brown, worked on the brief. So did Charles Swartwout of Boyle Brasher in Belleville.

The case is assigned to U.S. District Judge Patrick Murphy.

His wife, Patricia Murphy of Energy, teams with Tillery in a federal suit alleging weed killer atrazine contaminates water supplies.

Tillery and Patricia Murphy jointly appeared for plaintiffs in the most recent hearing before District Judge Phil Gilbert in that case in Benton on July 27.

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