Facebook 'likes' aren't protected, judge rules

The "like" button on Facebook seems like a relatively clear way to express your support for something, but a U.S.federal judge says clicking it isn't the same asconstitutionally protected free speech.

Exactly what a "like" means if anything played a part in a case in Virginia involving six people who say Hampton Sheriff B.J. Roberts fired them for supporting an opponent in his 2009 re-election bid, which he won. The workers sued, saying their First Amendment rights were violated.

Roberts said some of the workers were let go because he wanted to replace them with sworn deputies while others were fired because of poor performance or his belief that their actions "hindered the harmony and efficiency of the office."

One of those workers, Daniel Ray Carter, had "liked" the Facebook page of Roberts' opponent, Jim Adams.

While public employees are allowed to speak as citizens on matters of public concern, U.S. District Judge Raymond Jackson ruled that clicking the "like" button does not amount to expressive speech. In other words, it's not the same as actually writing out a message and posting it on the site.

The case enters a murky legal area: Previous cases have dealt with postings on social networks such as Facebook, but there are no explicit words in this situation. Marcus Messner, a journalism and mass communications professor at Virginia Commonwealth University who specializes in social media, said it was likely the matter would have to be settled by a higher court.

Plans to appeal

"Going to a candidate's Facebook page and liking it in my view is a political statement. It's not a very deep one, but you're making a statement when you like a person's Facebook page," Messner said.

James Shoemaker, an attorney for one of the fired workers, said he was surprised by Jackson's April 24 opinion and order and would appeal it.

Jackson acknowledged that other courts have ruled that Facebook posts are constitutionally protected speech, but he said in those cases there were "actual statements." Simply clicking a button is much different and doesn't warrant First Amendment protection, he wrote.

"The court will not attempt to infer the actual content of Carter's post from one click of a button on Adams' Facebook page," Jackson wrote.

However, First Amendment scholars said there isn't much to infer: "Liking" a Facebook page is much like putting a bumper sticker on a car or wearing a button. One critic of the ruling is Eugene Volokh, a law professor at the University of California at Los Angeles, who critiqued the judge's decision in a blog posting.

In an interview, Volokh said while a "like" could be ambiguous, there's no question it counts as speech. A thumbs-up gesture is symbolic expression protected by the First Amendment, for instance, and "liking" something on Facebook is even more clearly expressive because it generates text on a computer screen, he said.

Angered by postings

"It is conveying a message to others. It may just involve just a couple of mouse clicks, or maybe just one mouse click, but the point of that mouse click, a major point of that mouse click, is to inform others that you like whatever that means," he said.

Roberts, the sheriff, doesn't use Facebook but has acknowledged in court documents that he knew about Carter's post. Carter said in court documents that Roberts was so angry about the Facebook postings that he thought he might actually punch him following a staff meeting where Carter and another fired worker's Facebook post which was later deleted were mentioned.

In his ruling, the judge acknowledged the need to weigh whether the employee's speech was a substantial factor in being fired. But the judge wrote that the point is moot if "liking" something isn't constitutionally protected speech.

Don Herzog, a law professor at the University of Michigan, said Jackson's ruling raises questions about the power of the government to determine what should be taken seriously in politics when it comes to protected speech.

"It is for sure a thin statement, but it is clearly within what we do all the time as democratic citizens," Herzog said. "This is one of the ways we talk about politics in our society."