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FIRST AMENDMENT, MEDIA & TECHNOLOGY, SOCIAL MEDIA, THE ISSUES

Facebook “Likes” Aren’t Speech Protected By The First Amendment

via Venkat Balasubramani and Eric Goldman, ARS Technica

This post references a case decided by the US District Court of Eastern Virginia, Bland v. Roberts, 2012

Bland and his cohorts worked in the Hampton Sheriff’s Office, under B.J. Roberts. Roberts ran for re-election against Jim Adams, and the plaintiffs were lukewarm in their support of Roberts. In fact, three of the plaintiffs went so far as to “like” Adams’ Facebook page. Roberts won the election, and he decided to not retain the plaintiffs. He justified the terminations on cost-cutting and budgeting grounds, but plaintiffs argued that their termination violated their First Amendment rights. The court grants Roberts’ motion for summary judgment.

Plaintiffs alleged they engaged in a variety of protected activities, such as placing a bumper sticker on one of their cars and attending an Adams-sponsored cookout, but the court says there is no evidence that Roberts was aware of these activities. The one activity that Roberts knew about was “the presence” of two of the plaintiffs on his opponent’s Facebook page. However, with respect to this activity, the court says that plaintiffs did not point to any specific statements they made on Adams’ Facebook page. One plaintiff claimed he posted a comment to Adams’ page, but he later took it down, and the comment wasn’t presented to the court. Plaintiffs “liked” Adams’ Facebook page, and there was no dispute that Roberts was aware of this, but the court says this is insufficient:

[Roberts’] knowledge of the posts only becomes relevant if the court finds the activity of liking a Facebook page to be constitutionally protected. It is the court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.

[emphasis added; citing Mattingly v. Milligan, mentioned in Eric’s quick links here] The court declines to “infer the actual content of [plaintiff’s] posts from one click of a button on Adams’s Facebook page.”

The court also says that plaintiffs don’t adequately state a freedom of association claim. The court cites to the standards for when it’s permissible to terminate public employees for their political affiliations, but it doesn’t engage in any analysis because, in the court’s view, plaintiffs have not produced any evidence of association with Adams’ campaign that Roberts knew about—and any Facebook association is insufficient:

[a]side from the Sheriff’s admission that he knew [two of the plaintiffs] had been on Adams’s Facebook page, there is little to no evidence that rises to the level of a genuine dispute about whether the Sheriff actually know about the Plaintiffs’ support of Adams.

Even assuming plaintiffs could point to statements or association that the Sheriff knew about and that played a part in his decision to terminate plaintiffs, the court says Roberts is protected by qualified immunity. The Sheriff had not “transgressed [any] bright lines.”

The court’s conclusion on qualified immunity may or may not be defensible, but the court veered off course in concluding that a Facebook like is not speech. Maybe the court slept through Arab Spring and the many other instances of online activism in the past five years. Maybe the court is unaware of the robust body of First Amendment precedent which says that protection for expression is not limited to just actual words. Hello,Tinker (black arm bands) and Texas v. Johnson (flag burning)! More likely, as Eric notes in his comments below, the practical implications of a “like” threw the court for a loop.

It’s easy to dismiss Facebook “likes” as one of those mindless knee-jerk online activities we all routinely engage in that have little or no societal value. Courts can discount Facebook friendships in other contexts (see, e.g., Quickly v. Karkus, discussed here: “It’s Officially Legal: Facebook Friends Don’t Count“), but it’s well off the mark to say in this case that “likes” were not speech for First Amendment purposes. As menial as a Facebook like may be in the overall scheme of life, it’s an announcement to your Facebook friends that you support something, whether it’s a cause, a candidate, a company, or another person. A like also promotes a particular page or newsfeed to your friends, which sounds like quintessential expressive activity. [See Eric’s comments below for various potential implications of a Facebook like.]

While I remain leery of Facebook’s “like” ecosystem, I “dislike” this ruling.

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