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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.

“Revenge Porn” Is the New Form of Sexual Harassment

What is “revenge porn” and why it should be criminalized?

Revenge porn is the newest form of nearly legal sexual harassment. Essentially, scorned or malicious individuals post nude or barely clothed photographs of men and women on websites like YouGotPosted.com (hyperlink omitted) in order to embarrass and sexually harass them. Relationships that end badly are no longer resulting in tears, but in resentful and still-legal revenge porn.This trendy Internet concoction is one part sexual harassment, one part stalking, and one part cyber bullying. Thus, it is not only hurtful to persons’ personal reputations and emotional stability, but to their professional careers as well. Since revenge porn websites also display persons’ names and neighborhoods along with their naked photograph, employers become privy to much more than they saw during the interview.

Why is revenge porn still legal?

The concept of revenge porn is difficult to place in one legal category. On one hand, individuals consent to, or intend to send naked photographs, which is legal. On the other hand, the receiver of the naked pictures posts the images online without the person’s consent, which should no longer be legal.  Despite the person’s initial consent, revenge porn can qualify as stalking if the person is sufficiently harmed by the effects of the photographs. According to federal statute 18 U.S.C. §2261A, stalking is willful and malicious behavior that “seriously alarms or annoys that person and would cause a reasonable person to suffer emotional distress.”  The federal statute also outlines that email or cell phone-induced forms of stalking and harassment are criminalized. Revenge porn evidently raises a privacy issue, and while it could be aligned with stalking, it can also be aligned with cyber bullying. An individual’s unintentional display of nudity on the Internet will not only cause severe emotional hurt, but also a virtual rape of his or her privacy. At the local level, Massachusetts’s law deals with bullying in schools, but adults do not have the same protection.

State law has barely skimmed the surface of sexual harassment crimes

Despite current legislation, the harrowing effects of cyber bullying remain in the news. The finger could be pointed to the fact that the states have not truly recognized forms of harassment like “revenge porn” and cyber bullying. Massachusetts’s statute M.G.L.A. §265 43 (a)(1), which criminalizes stalking, only applies if the person is also put in danger of physical harm. New Jersey is the only American state which upholds that a person who photographs, films, video tapes, records or otherwise reproduces the image of another person’s exposed genitalia or who is engaged in sexual contact is guilty of a third degree crime. There was the case of a fifteen-year-old Silicon Valley girl who hanged herself after photographic evidence of her sexual harassment ended up on all her classmates’ cell phones. Accordingly, California is considering tightening up the laws with Senate Bill 225, which would criminalize revenge porn as a misdemeanor with up to a year in prison and a $2,000 fine.

Revenge Porn Raises Public Policy Concerns

The fact that revenge porn remains legal in most states speaks to recent social trends. People already give Facebook, Instagram, and other social media websites the permission to display intimate details about their lives. Thus, we are more lax about Internet etiquette and privacy laws when we are the ones posting bathing suit shots. The caveat, however, is that people post this information themselves, and they have the ability to decide what the world can see before they click “post.” However, once this information enters the World Wide Web, tame wedding pictures as well as raunchy nudie shots become floaters in a no man’s land. It should not be shocking, then, that so many people are negatively affected by revenge porn; their personal information is posted without their consent for everyone to see.

Opposition to Revenge Porn Criminalization

As expected, those who reject Bill 225 are emphasizing the First Amendment, and are weary of creating a Senate bill against freedom of speech. Electronic Frontier attorney Nate Cardozostated that the bill might “criminalize victimless instances.” However, this argument seems neither strong enough, nor reassuring enough to outweigh the deaths of innocent teens and the “victimless,“ yet affected lives of others. Revenge porn should not enter the American jargon as a taboo topic, but as a crime punishable by the legal system.