Clicking ‘Like” On Facebook Isn’t Protected Speech For Sheriff’s Department Employees In Virginia

NORFOLK, VA &#8211 The “like” button on Facebook seems a relatively clear way to express your support for something, but a federal judge says that does not mean clicking it is constitutionally protected speech.

Exactly what a “like” means — if anything — played a part in a case in Virginia involving six people who say Sheriff B. J. Roberts of Hampton fired them for supporting an opponent in his 2009 re-election bid, which he won. The workers sued, saying their First Amendment rights were violated.

Sheriff Roberts said some of the workers were let go because he wanted to replace them with sworn deputies while others were dismissed because of poor performance or his belief that their actions “hindered the harmony and efficiency of the office.”

One of those workers, Daniel Ray Carter, had “liked” the Facebook page of Sheriff Roberts’s opponent, Jim Adams.

While public employees are allowed to speak as citizens on matters of public concern, Judge Raymond A. Jackson of Federal District Court ruled that clicking the “like” button did not amount to expressive speech. In other words, it was not the same as actually writing out a message and posting it on the site.

The case enters a murky legal area: previous cases have dealt with postings on social networks such as Facebook, but there are no actual words in this situation.

Marcus Messner, a journalism and mass communications professor at Virginia Commonwealth University who specializes in social media, said the matter would probably have to be settled by a higher court.

“Going to a candidate’s Facebook page and liking it, in my view, is a political statement,” Mr. Messner said. “It’s not a very deep one, but you’re making a statement.” James H. Shoemaker, a lawyer for one of the dismissed workers, said he was surprised by Judge Jackson’s April 24 ruling and would appeal it.

Judge Jackson acknowledged that other courts have ruled that Facebook posts are constitutionally protected speech, but he said those cases involved “actual statements.” Simply clicking a button is different and does not warrant First Amendment protection, he wrote.

One critic of the ruling is Eugene Volokh, a law professor at the University of California, Los Angeles.

In an interview, Mr. Volokh said that although a “like” could be ambiguous, there was no question it counted as speech. A thumbs-up gesture is symbolic expression protected by the First Amendment, for instance, and “liking” something on Facebook is even more clearly expressive because it generates text on a computer screen, he said.

“It is conveying a message to others,” Mr. Volokh said. “It may just involve just a couple of mouse clicks, or maybe just one mouse click, but the point of that mouse click, a major point of that mouse click, is to inform others that you like whatever that means.”

Sheriff Roberts does not use Facebook but has acknowledged in court documents that he knew about Mr. Carter’s “like.” Mr. Carter said in court documents that the sheriff was angry after a staff meeting at which the Facebook posts were mentioned.

Judge Jackson acknowledged the need to weigh whether the employee’s speech was a substantial factor in being fired. But he wrote that the point was moot if “liking” something was not constitutionally protected speech.

From The New York Times.

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