Is Hitting The Facebook “Like” Button Protected Political Speech?

A Federal case in Virginia is testing the boundaries of what constitutes protected speech in the digital age.

Facebook and the ACLU are arguing that it is in response to a Federal Judge’s ruling that it isn’t:

The ACLU wants a federal judge to add “liking” something on Facebook to the list of inalienable constitutional rights.

The civil liberties group joined the social network this week in filing amicus briefs with the 4th Circuit Court of Appeals in Richmond, arguing that a District Court judge was wrong in refusing to grant free speech protection to “liking” something on Facebook.

District Court Judge Raymond A. Jackson ruled this spring that employees of the Hampton Virginia Sheriff’s Office, who were allegedly fired because they “liked” the Facebook page of Sheriff B.J. Roberts’ opponent in the 2009 election, didn’t do enough to warrant constitutional protection.

“It is the Court’s conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” Jackson wrote in his opinion. “In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.”

The ACLU and Facebook both decried that finding earlier this week.

“Whether someone presses a ‘Like’ button to express those thoughts or presses the buttons on a keyboard to write out those words, the end result is the same: One is telling the world about one’s personal beliefs, interests, and opinions,” the ACLU wrote in its brief. “That is exactly what the First Amendment protects, however that information is conveyed.”

Facebook said that Jackson’s ruling “betrays a misunderstanding of the nature of the communication at issue and disregards well-settled Supreme Court and Fourth Circuit precedent.”

What’s striking about the Judge’s decision is that it’s fairly clear that these two deputies were fired specifically because they had appeared to voice political support for the man who was running against their boss:

Carter’s troubles began in the summer of 2009, when longtime Hampton Sheriff B.J. Roberts was running for reelection, according to the lawsuit, filed in federal court in Newport News in March 2011. Roberts learned that some of his employees, including Carter, were actively supporting another high-ranking Sheriff’s Office official, Jim Adams, in the election.

Carter liked Adams’s campaign page on Facebook, according to court records. When Roberts learned of the campaigning on the site, he became “incensed” and called a meeting of employees, according to the lawsuit. He allegedly told them that he would be sheriff for “as long as I want it.”

After the meeting, the lawsuit says, Roberts approached Carter and told him: “You made your bed, now you’re going to lie in it — after the election you’re gone.”

About a month after Roberts was reelected, Carter and five other employees who supported Adams or did not actively campaign for Roberts were fired, according to the lawsuit. The other employees are also parties in the lawsuit. Carter and his attorneys did not return calls seeking comment.

In filings in response to the suit, Roberts’s attorney disputes Carter’s version of events and says the firings were not politically motivated. The attorney did not return a call for comment, and Roberts could not be reached.

“All employment decisions involving plaintiffs were constitutional, lawful, not the result of any improper purpose or motive, and not in retaliation for political expression,” the sheriff’s attorney wrote in the filings.

Roberts said that some of the fired deputies had unsatisfactory work performance and that the campaigning had disrupted the workplace.

The question that the opinion doesn’t seem to answer very well, though, is whether there was any actual evidence of “unsatisfactory work performance” on the part of these two men. If there isn’t then it becomes rather clear that they were fired for their political expression, even if Sheriff Roberts attempted to couch in in terms of hindering “the harmony and efficiency of the Office.” Obviously, it creates a difficult situation when an employee of a government employee expresses support for the person who’s running against their boss, but that alone isn’t sufficient reason to fire someone. Besides which, it’s not at all uncommon for political differences like this to be found inside government offices. There’ve been occasions here in Virginia where a Sheriff’s Deputy has run against his boss,. or a Deputy Commonwealth’s Attorney has run against his boss. Obviously, after such elections are over there’s bound to be some degree of bad blood, but these people weren’t even running, they were expressing a political opinion. The Judge’s assertion that what they did didn’t constitute a political act strikes me as a misunderstanding of how political speech is expressed in the digital era.

Shortly after the decision came down, Eugene Volokh was highly critical of the Judge’s opinion:

A Facebook “like” is a means of conveying a message of support for the thing you’re liking. That’s the whole point of the “like” button; that’s what people intend by clicking “like,” and that’s what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the “like” conveyed. I would treat “liking” as verbal expression — though it takes just one mouse-click, it publishes to the world text that says that you like something. But even if it’s just treated as symbolic expression, it is still constitutionally protected, as cases such as Texas v. Johnson (1989) (the flag-burning case) show.

To be sure, the message isn’t highly detailed; it doesn’t explain why one is supporting the “liked” person or cause. But the First Amendment protects speech even when the speech is not rich with logical argument, or is even vague or ambiguous. “[T]he First Amendment shields such acts as saluting a flag (and refusing to do so), wearing an armband to protest a war, displaying a red flag, and even ‘[m]arching, walking or parading’ in uniforms displaying the swastika. As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection ….”

Putting a “Jim Adams” bumper sticker on one’s car would be constitutionally protected. Putting such a sign on one’s lawn would be constitutionally protected. “Liking” Jim Adams on Facebook is equally constitutionally protected.

Volokh is right. These two deputies may not have been writing long political dissertations or handing out leaflets, but they were most assuredly engaging in a political act by “Liking” that Facebook page just as they’d be engaging in a political act with a yard sign or a bumper sticker. Just because all it took was the click of a mouse, that doesn’t mean it was any less political or that it’s any less deserving of protecting. This case is currently on a appeal to the Fourth Circuit court of Appeals, here’s hoping they get it right..

FILED UNDER: Law and the Courts, Science & Technology, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. James in LA says:

    “Like” is speech. Only those motivated by intense dislike, usually from breakfast onward, want to limit what one likes.

  2. Nikki says:

    This case is currently on a appeal

    Completely OT, but whatever happened to the use of the word “an” before a noun beginning with a vowel? Is it just typos or has it really been kicked to the curb?

  3. walt moffett says:

    Of course, its protected speech, though whether is wise speech or defecating where you eat is another question.

  4. bill says:

    if you’re dumb enough to make your life visible to all, then your just dumb. that’s why we have a aclu, dumb people need help for free.