Facebook "likes" are not constitutionally protected
If your boss is running for sheriff, it's protected speech to openly support his opponent. Just don't "like" his page on Facebook if you don’t want to get fired.
Dozens of people have been allegedly fired for comments or photos they have made on Facebook. But now one of them is fighting back after he merely "liked" a page. This is the exact scenario of Bland v. Roberts, 2012, a case decided by the U.S. District Court of Eastern Virginia.
Bobby Bland and five of his coworkers worked under Sheriff B.J. Roberts while he was running for reelection. However, the group preferred Roberts’ opponent, Jim Adams. The group engaged in First Amendment-protected activities, such as putting Adams bumper stickers on their cars and attending a barbecue for Adams supporters. But according to the case, it’s unclear that their boss knew about any of these actions.
All Roberts knew was that all of them had pressed “like” on Adams’ Facebook page. So when Roberts won the election, he fired the whole group.
Ordinarily, political support is protected under the First Amendment and employees can’t get fired no matter which candidate they support. However, the inclusion of Facebook ran the court for a loop: The judge ruled that Facebook “likes” don’t count as constitutionally protected speech. The judge cited two cases involving other Facebook related firings and wrote:
“These illustrative cases differ markedly from the case at hand in one crucial way: Both ... involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection.”
According to the legal experts at Ars Technica, this is a mistake.
“[T]he 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)!”
It wouldn’t be the first time that social media questions have flummoxed U.S. courts. In December, a confused judge ruled that it’s OK to stalk people on Twitter. But where that earlier case expanded First Amendment rights in social media, this one has severely limited them.
Photo by Denis Dervisevic