Court to weigh ‘like’-click speech

[Washington Post]

Daniel Ray Carter Jr. logged on to Facebook and did what millions do each day: He “liked” a page by clicking the site’s thumbs-up icon.

The problem was that the page was for a candidate who was challenging his boss, the sheriff of Hampton, Va.

That simple mouse click, Carter says, caused the sheriff to fire him from his job as a deputy and put him at the center of an emerging First Amendment debate over that digital seal of approval: Is liking something on Facebook protected free speech?

Carter filed a lawsuit claiming that his First Amendment rights had been violated, and his case has reached the U.S. Court of Appeals for the 4th Circuit.


This week, Facebook and the American Civil Liberties Union filed briefs supporting what they say is Carter’s constitutional right to express his opinion, signaling a possibly precedent-setting case.

The interest was sparked by a lower court’s ruling that liking a page does not warrant protection because it does not involve “actual statements.”

If the ruling is upheld, the ACLU and others worry, a host of Web-based, mouse-click actions, such as re-tweeting (hitting a button to post someone else’s tweet on your Twitter account), won’t be protected as free speech.

“We think it’s important as new technologies emerge … that the First Amendment is interpreted to protect those new ways of communicating,” said Rebecca K. Glenberg, legal director of the ACLU of Virginia. “Pressing a ‘like’ button is analogous to other forms of speech, such as putting a button on your shirt with a candidate’s name on it.”

The “like” controversy is just one of many thorny issues surrounding social media in the workplace.

In April, the Marine Corps said it would discharge a sergeant who criticized President Obama on his Facebook page – including allegedly putting the president’s face on a poster for the movie “Jackass.” And last fall, the National Labor Relations Board ruled that a New York non-profit illegally fired five workers who criticized a colleague on the site.

The board, a federal agency that brings labor-related complaints on behalf of workers, said it had seen the number of cases involving social media skyrocket from zero to more than 100 over five years.

One fateful ‘like’

Carter’s troubles began in 2009, when longtime Hampton Sheriff B.J. Roberts was running for re-election, according to the federal lawsuit, filed in Newport News, Va.

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’ election 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.”

Soon after Roberts was re-elected, Carter and five other employees who supported Adams or did not campaign for Roberts were fired, according to the lawsuit.

Roberts’ attorney responded with filings disputing Carter’s version of events and says the firings were not politically motivated. Roberts said some of the fired deputies had unsatisfactory work performance and that the campaigning had disrupted the workplace.

U.S. District Judge Raymond A. Jackson ruled against Carter and the other plaintiffs in January, dismissing the argument that a Facebook “like” is constitutionally protected speech.

“Merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” Jackson wrote. “In cases where courts have found that constitutional protections extended to Facebook posts, actual statements existed within the record.”

Facebook took issue with the decision, saying in its filings that likes are the “21st-century equivalent of a front-yard campaign sign.”

Jackson’s decision has also drawn criticism from some legal experts. Eugene Volokh, a law professor at UCLA, said firing government employees for speaking out about matters of public concern is generally unconstitutional.

Volokh, like the ACLU, says “liking” is similar to putting a bumper sticker on a car, so it should be protected. He said he thinks the 4th Circuit will probably overturn the district judge’s ruling – but if it does not, it would be a significant moment.