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May 7, 2012

Court Says "Like" Isn't Like Speech

FOR AN UPDATE OF THIS CASE, SEE THIS POST.

A federal judge has held -- in an opinion granting summary judgment in Bland v. Roberts, Civil No. 11-45 (E.D. Va.  Apr. 24, 2012) -- that "liking" a supervisor's political opponent on Facebook does not constitute speech that can be protected from political retaliation in a non-partisan government office.

"It is the Court's conclusion that merely 'liking' a Facebook page is insufficient speech to merit constitutional protection," District Judge Raymond A. Jackson held. Bland, slip op. at 6.

The case was brought by six former employees of the Hampton County, Virginia Sheriffs Office -- two who were unsworn, civil employees, and four who were uniformed deputy sheriffs -- who expressed preferences for one of Sheriff B.J. Roberts' opponents in the November 2009 election, and were fired after Roberts won re-election.

Under existing law, a public employee may recover for "retaliatory discharge" in violation of the First Amendment if s/he is fired for speaking as a citizen upon a matter of public concern, and the employee's
interest in speaking upon the matter of public concern outweighs the government's interest in providing effective and efficient services to the public.

Two of the former employees alleged that they lost their jobs because they "liked" the opponent's page on Facebook. (They also alleged that they had posted statements of support on Facebook, but the court did not find that they had presented adequate evidence of these statements.) But the court rejected the notion, saying that "[i]n cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record." Bland, slip op. at 6.
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. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to gamer First Amendment protection.  Bland, slip op. at 6-7.

This can't be right. A Facebook "like" can be analogous to a gesture such as a "thumbs up:" which, in fact, is the icon what Facebook uses on its "like" button.

A Facebook "like" may be a brief -- and even somewhat ambiguous -- message, but it clearly is a form of expression.

2 comments :

Anonymous said...

nice posting.. thanks for sharing.

Eric P. Robinson said...

For an update on this post, click here.

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