More On: "LIKE" Button & Free Speech

The little "LIKE" button on Facebook is being DISLIKED by some rabbit-eared government officials.   More government employees are being fired and suspended for "Liking" the wrong things on Facebook.

The latest episode that appears to be headed to court is the suspension of three Mississippi safety workers for clicking "LIKE" on a Facebook posting of a firefighter. 

The now former-firefighter wrote a Facebook post highly critical of the mother of a young child involved in an accident.   After the firefighter resigned under pressure, the Columbus, MS City Council suspended three safety workers who "Liked" the post.  

This follows on the heels of a Virginia case now pending in the United States 4th Circuit Court of Appeals.  That case, detailed in a prior post on Law for Writers,  involved sheriff's deputies fired for clicking "Like" on the Facebook page of the sheriff's opponent in the upcoming election.  The District Court held that clicking the "LIKE" button wasn't sufficient expression to invoke the protection of the First Amendment.

Facebook, which receives more than three billion posts and  "Likes" a day, has filed an amicus brief in support of the fired employees, as has the ACLU. Personal note: the Virginia District Court reflected a remarkable lack of respect for the First Amendment and the expanse of our rights of free expression.  I expect the 4th Circuit will unanimously reverse the district court's decision.

The First Amendment is not limited to speech, but covers virtually all expression - including nude dancing, at least in Iowa. (Click here for story, but alas, no photos). In the leading case of Texas v. Johnson, (click here) the United States Supreme Court struck down the Texas statute criminalizing flag burning, Justice Brennan writing for the majority, stated that First Amendment protection "does not end at the spoken or written word.”

Michael Doyle with McClatchey Newspapers has put together an excellent piece discussing the troubling confluence of the First Amendment, Social Media and Technology.  It's well worth reading.  Click Here for his article: "In Facebook court cases, high tech and free speech collide."

"Like" On Facebook Is Not Speech Protected by the 1st Amendment

Is "like" free speech?  Apparently not, at least not in Virginia.

An interesting issue has evolved at the crossroads of technology and the First Amendment.  Is clicking "like" on Facebook protected speech?  The case should be of interest to many writers who use Facebook and other social media to promote their work.

A federal judge in Virginia has ruled that "Like" is not speech and therefore not protected by the First Amendment.

The issue, as do so many First Amendment / Civil Rights issues, arose out of a political campaign and a rabbit-eared sheriff.  For some reason, many First Amendment issues arise in the context of sheriffs, who sometimes view themselves as being the unassailable law of their domain.  (The seminal U.S. Supreme Court case on the First Amendment -- New York Times v. Sullivan -- involved a sheriff).

Daniel Ray Carter, Jr., along with several other employees of the Hampton, VA Sheriff's Department, went on Facebook and clicked "like" on a page for a candidate for Sheriff.  The problem was the candidate was running against their boss, long-time Sheriff B.J. Roberts. 

When Sheriff Roberts saw that Carter and the others had "liked" the Facebook page of his opponent, he fired them.

Carter sued for violating his First Amendment rights and his civil rights.  But Federal District Judge Raymond A. Jackson sided with the Sheriff, holding that

 "clicking" on a Facebook icon was not sufficient speech to warrant First Amendment Protection.  Specifically, his opinion stated:

"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 garner First Amendment protection."

My personal view is that this decision shows a remarkable lack of understanding of both the expanse of the First Amendment and current technology.  I am unaware of any other case that determines that something isn't "enough speech" to warrant First Amendment protection. 

Freedom of speech and association goes beyond standing on a soap box in the public square.  It encompasses all manner of expression - except apparently "Liking" on Facebook while in Virginia.

Carter has appealed to the 4th Circuit Federal Court of Appeals, and both Facebook and the ACLU have filed briefs in support of Carter.  

For news coverage, take a look at the Washington Post article: A Facebook Court Battle.  

For a detailed analysis of the case, check out the Citizens Media Law Project by CLICKING HERE.