[author: Ada Kulesza]
If you want to keep your job, don’t “like” someone on Facebook who is an opponent of your boss. In a decision that affects free expression on social media, a federal judge ruled that there’s no First Amendment protection for a one-click Facebook like.
“It is the Court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection,” wrote federal trial judge Raymond A. Jackson of Norfolk, VA.
The candidate in question — B.J. Roberts, Sheriff of Hampton, Virginia — cited a budget squeeze when he fired Bobby Bland and four cohorts, who took to the court crying free speech foul over Facebook. The ex-employees of Roberts’ election campaign said the sheriff knew they “liked” his opponent’s Facebook page, prompting Roberts to let them go once he won.
Bland and friends also attended Roberts’ opponents cookout, but the court decided that Roberts didn’t know about that or the bumper sticker – which would be protected under the First Amendment.
The main question was whether a “like” on Facebook constituted free speech under the Constitution. Granting Roberts a motion for summary judgment, the court said no. Perhaps if they had actually written a comment they could have kept their jobs. The judge ruled, “No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’ Facebook page.”
Cyber Space Cloud
The legal system’s definitions on cyberspace resemble a nebula – still unformed, hazy, and coming together where precedent can be found. Tech attorney Eric Goldman, associate professor at Santa Clara University, writes with a chuckle about sober judges mired in the Web: “The technological implications of social media sure does baffle the judicial system. What does it mean to ‘friend’ someone? What does it mean to ‘like’ something? Most judges seem to want to curl up into a ball when posed with such thorny questions. Could you imagine a judge trying to grok what a Facebook ‘poke’ means?”
The court declined to “infer the actual content of [plaintiff’s] posts from one click of a button on Adams’s Facebook page.” But the implications can be huge.
“Listing a person’s name as an endorser of a political candidate is core First Amendment activity,” writes Goldman, listing the implications when you make a single click on social media :
Whatever you say on social media can and will be used against you.
There are instances where certain employers qualify for immunity in a case like Bland vs. Roberts.
“Perhaps … we might otherwise excuse Roberts’ firings through qualified immunity, or in fact maybe the budget cutting wasn’t pretextual, but the judge’s techno-confusion prevented it from reaching those questions squarely,” writes Goldman. “This looks like an excellent case for an appeal.”
After all, a single action can say mountains more than words. In 1989 the Supreme Court decided First Amendment protection to burning a flag in protest, and in 1969 decided that wearing black armbands to protest the Vietnam war – a totally wordless act – was also exercising free speech.
As this case slogs through the system, it gives the public ample warning: the First Amendment on the Internet is a shaky issue, and if you’d prefer to keep out of attorney’s offices and courtrooms, you have to watch what you say and click on the Internet.
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