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To “Like” or not to “Like,” You are Free to Choose.

It all began last year when a Virginia Sheriff’s employee, Daniel Ray Carter, was fired because he “liked” his boss’s political opponent on Facebook.  Carter filed a lawsuit claiming that his termination was a violation of his right to free speech.  However, the federal district court ruled that clicking the “like” button on Facebook was not sufficient speech to be protected by the First Amendment.  After considering the appeal, in which both Facebook and the ACLU joined, the Fourth Circuit Court of Appeals overturned the prior decision, holding that “liking” something or someone on Facebook is, without a doubt, constitutionally protected speech.

Why was Carter terminated?

The lawsuit began when Hampton, Virginia Sheriff B.J. Roberts fired six employees after they expressed support for his political opponent in 2009. One of those employees, Daniel Ray Carter, expressed his support by “liking” the opponent’s Facebook page.

Sheriff Roberts argued that the employees were terminated because they were not sworn deputies and because of poor performance.  He also admitted, though, that he believed their actions “hindered the harmony and efficiency of the office.”  That’s code for: “they did not support me, so they had to go.”  As the ACLU argued in their appellate brief,

It is binding First Amendment law that irrespective of an employee’s position, a public employer cannot terminate him or her for speech on a matter of public concern unrelated to his or her job duties.

These facts raised the question, is clicking “like” on Facebook actually speech?

How is “liking” someone on Facebook “speech?”

As anyone familiar with social media in general, and Facebook in particular, knows clicking on Facebook’s “like” button essentially lets other Facebook members know that you support an individual, organization, product, event, or other expression.  On April 24th, 2012, federal District Court Judge, Raymond A. Jackson, decided that “liking” a Facebook page is not protected speech because it is not an actual statement; in other words, there were no words published.

However, “liking” a candidate on Facebook is no different than expressing your support of him at a town meeting, public campaign rally, or putting up a sign in the front yard or a bumper sticker on your car.  Not only that, Facebook uses the “thumbs up” symbol that is universally understood to express your agreement or support. Although the Internet and social media are new and innovative methods of communication, these media still constitute symbolic speech or expression, which is protected by the First Amendment. Actually making a verbal statement is not required.  Indeed, remaining silent and burning a flag is considered constitutionally protected speech.  Now that clicking the thumbs-up “like” button is considered not only speech, but also protected speech, what does that mean?

What does the Appellate Court’s decision mean?

U.S. Circuit Judge William Traxler wrote in his opinion that liking someone on Facebook “is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”  This means that, in the context of this lawsuit, the termination claims raised by Carter are being reinstated.  However, the Sheriff is personally immune from monetary damages for his role in terminating Carter.  That is because, at the time he made the employment decision, the law was not clear on this issue.  In other words, it was reasonable at the time for a sheriff to believe he could require political loyalty from his employees.

In this case, the ruling was a triumph for the employees who lost their jobs. However, the case also exposes the gray areas in free speech.  In our age of social media, more and more content is being posted online to the public. So, those who choose to express their views on social media continuously straddle the line between free speech and going overboard.  At least as long as the gray areas remain.

Don’t be guilty of a Facebook felony

Many social media gurus may not consider that a comment on Facebook could earn you time in prison.  However, that is a stark possibility for a teen in Texas whose offensive comments are being viewed as terroristic threats.  Back in February, Justin Carter made the following insensitive and arguably threatening comment on Facebook:  “I’m [expletive] in the head alright. I’ma shoot up a kindergarten/ And watch the blood of the innocent rain down/ And eat the beating heart of one of them.”  As this statement was posted just two months after the Sandy Hook Elementary massacre in December 2012, its impact was that much greater.

The Impact of Social Media

The criminal implications of Carter’s actions demonstrate the inherent pitfalls of social media.  The expansive reach of the statements we make on social media, published far and wide over the World Wide Web, can have an unintended impact. As one article recognizes:

people are stumbling into trouble for behavior that has a wider audience on the Internet but would never get people into trouble back in the day when trash-talking simply took place in the living room as people played a violent video game, or when drunkenness was witnessed only by a few friends at a party.

Social media has expanded our audience in ways we never imagined.

Joke or Genuine Threat?       

Of course, the context of Carter’s statement should be considered when determining his guilt or innocence.  If his statements were made simply as “joke” (however insensitive) in response to another friend’s comments, his actions could not reasonably be considered a threat.  Indeed, there is a fine line between illegal threats and protected free speech.  The First Amendment provides, in relevant part, that “Congress shall make no law . . . abridging the freedom of speech.”  Based on the long history of case law defining the contours of the First Amendment, freedom of speech includes:

  • Freedom not to speak
  • Freedom to wear black armbands to school to protest a war
  • Freedom to use certain offensive words and phrases to convey political messages.
  • Freedom to engage in symbolic speech

These freedoms do not include, however, inciting actions that would harm others.  For example, “shouting fire in a crowded theater” is a popular metaphor for speech or actions which tend to create needless public panic.  It could be said, then, that Carter’s speech in this case has already created unnecessary concern that yet another Sandy Hook tragedy is in the making.

Terroristic Threats or Insane Ramblings?

In another similar instance of Facebook posting, a former Marine posted anti-government statements that resulted in a forced psychiatric evaluation.  His statements, somewhat similar to Carter’s, included “a day of reckoning” was coming, and “sharpen my axe; I’m here to sever heads.” After a hearing, the Virginia judge released him, finding that there was no basis for holding him based on his comments.  This case begs the question, why was the Marine held for psych testing instead of being charged, as Carter was, with terroristic threats?

Consider The Consequences Of Your Social Media Rantings.

The lesson to be learned here is that “free speech isn’t free of consequences.” This year’s First Amendment survey also shows students’ use of digital media for news and information is growing. Since 2006, it has doubled, with three quarters of the students getting news from social media several times a week.    As Ken Paulson, President of the First Amendment Center, has said on this issue:

[y]oung people who tweet in offensive or controversial ways could find themselves called to account in forums far away from the classroom. The very nature of tweets — spontaneous and unfiltered and distributed well beyond a core group of friends — makes them potent and sometimes problematic.

It would serve us well to always consider the possible consequences of the statements we make on social media outlets, and instruct our youth to do the same.