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

Contact Attorney Jason Chan

Attorney Jason Chan

267 North Beacon Street, Suite 3
Boston MA 01235

Phone: 781-343-1DUI (781-343-1384)
Fax: 617-226-7986

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.

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