Facebook 'likes' are protected free speech. I'll give a thumbs up to that | Dan Gillmor

Free speech online is the key to the future of the internet. Tampering with that – in Congress or the courts – is dangerous

Most of us have moved beyond the tired debates about whether interactions online are the same as ones in person. Now the legal system is finally catching up on what constitutes free speech in the digital age.

Facebook's "Like" button got some key support as an expression of speech when an appellate court overturned a perverse lower court ruling that had ruled clicking a button wasn't the same as saying something out loud. The case involved employees in a Virginia sheriff's department who were making clear their support for their boss' challenger by "liking" some of the other candidate's Facebook posts. The sheriff fired them. They sued for reinstatement.

A lower court had thrown out their case, saying that clicking a button wasn't an "actual statement". They appealed, and for now they seem to be prevailing. It's a good thing, because this case had created plenty of consternation in legal and free-speech circles.

Meanwhile, a federal judge overturned the convictions of five New Orleans police officers for crimes related to killings and coverups in the days after Hurricane Katrina smashed into the city. The judge determined that the US government prosecutors had engaged in gross misconduct, including the posting of biased comments on Nola.com, the website affiliated with the New Orleans Times Picayune newspaper.

This case wasn't about free speech per se – it was about the rights of the accused. The jurors had said they'd read material from the Nola.com site, and the judge was appalled, writing:

The use of the media, in ways that might very well prejudice defendants, and create an overriding tenor of guilt in the community long before trial, must be avoided.

Given the frequent misbehavior by the Justice Department in recent years, and the often-ignored presumption of innocence in American courts, the judge had good reason to make this kind of ruling.

It's important to note that no one stopped the prosecutors' idiotic web postings ahead of time, though it's also fairly clear that the judge hasn't known about them. Prior restraint of speech is anathema in America; our attitude is to let people speak, and if that turns out to be a problem, deal with it later.

That notion is enshrined in a powerful way in Section 230 of the Communications Decency Act, a 1996 law that was partially struck down as an unconstitutional curb of free speech. Section 230, which remained in force, is in many ways the most important thing Congress did to ensure a robust debate online. It says, basically, that the host of an online service where the public contributes speech is not responsible for the speech that takes place there.

This does not mean you and I are free to post something obscene or libelous in, say, the comments on someone else's site. We can be prosecuted for the former and sued for the latter. But the owner of that site isn't responsible for what you and I might say or do. This is entirely appropriate, and it has helped give us the amazing range of speech and creativity we've seen online since the internet became a major platform.

Unfortunately, the top law enforcement officials in many of the American states want Congress to muck with Section 230 in a terrible way, by giving states all kinds of enforcement rights surrounding online speech that they don't have today. They say – don't they always – that this is to protect children and stop scams. What they would accomplish, if Congress gives them what they want, is to force internet services providers and site owners to worry about what any of the 50 states might find objectionable. The speech-killing implications are obvious, and it's not as if they don't already have the tools they need to prosecute crime