Is a Facebook ‘Like’ Protected Under the Right to Free Speech?

Six former sheriff’s department employees who said they were fired in 2009 for “Liking” their boss’ political rival on Facebook appeared in Virginia federal appeals court this past week.

According to Salon, a different judge who heard their case ruled that Facebook Likes are not substantive enough to be protected by the right to free speech. Now the six former employees from Hampton, Va., along with attorneys for Facebook and the American Civil Liberties Union, are trying to convince a three-judge panel to reverse the lower court ruling.

There are 500 million Facebook users who utilize the Like feature to share ideas, said company attorney Aaron Panner.

“Any suggestion that such communication has less than full constitutional protection would result in chilling the very valued means for communication the Internet has made possible,” Panner told the panel.

Four years ago, when Danny Carter, a former Hampton jailer, clicked Like on a page called “Jim Adams for Hampton Sheriff,” the activity was posted to his own page along with a link to the campaign website. His job was later terminated.

Carter, 40, and five of his former coworkers sued Sheriff B.J. Roberts after he was re-elected in 2009 for allegedly retaliating against them for their political affiliation.

Roberts claims the employees were not fired because of their Facebook activities.

U.S. District Judge Raymond Jackson ruled in 2012 that the one-click activity was too vague or ambiguous to be protected as free speech. He agreed with attorneys for Roberts that clicking Like is not necessarily a reflection of an opinion, and that many people click the button just to gain access to a particular page.

Facebook and the ACLU argue that Liking a page is no different than putting a sign for a politician in your yard. In 1994, the Supreme Court ruled that political campaign signs in one’s yard are protected speech.

Constitutional lawyers criticized Jackson’s decision, saying that he ignored the myriad of single-click internet actions that qualify as protected speech, like making donations to campaigns or sharing a video.

“Facebook has 3 billion Like clicks a day,” said Roberts’ attorney Jeff Rosen. “Is each one of those speech? I don’t think so.”

Rosen said that many could Like a page on accident. “That’s the problem with Facebook,” he said. “You don’t know what your actions will do or the consequences they will have.”

Sources: Bloomberg, Salon


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