A recent district court decision highlights the growing prevalence of issues relating to new media technologies arising in the courtroom. In Bland v. Roberts, the Federal District Court for the Eastern District of Virginia held that merely “liking” a Facebook page is insufficient speech to merit constitutional protection.
Five former employees of the Hampton Sheriff’s Office brought a lawsuit against Sheriff B.J. Roberts, in his individual and official capacities, alleging that he violated their First Amendment rights to freedom of speech and freedom of association when he fired them, allegedly for having supported an opposing candidate, Jim Adams, in the local election against Roberts for Sheriff. In particular, two of the plaintiffs had “liked” Jim Adams’s page on Facebook. When Sheriff Roberts was reelected, he terminated the plaintiffs as employees, but did not cite the Facebook likes or other support of Jim Adams as reasons for their departures.
The two plaintiffs alleged that they engaged in constitutionally protected speech when they liked the Jim Adams Facebook page. In April 2012, however, the court granted Roberts’s motion for summary judgment, ruling that a Facebook like does not meet the standard for constitutionally protected speech. (The freedom of association claims were dismissed under the theories of qualified and Eleventh Amendment Immunity.)
The court looked to cases involving speech on social media websites, noting that precedent had developed around cases where the speech at issue involved actual statements (e.g., Mattingly v. Milligan and Gresham v. City of Atlanta). The court held that this case was distinguishable because liking involved no actual words, and constitutionally protected speech could not be inferred from “one click of a button.” In summary, the court wrote that liking a Facebook page is “not the kind of substantive statement that had previously warranted constitutional protection.”
Because it ruled that liking a Facebook page cannot be considered constitutionally protected speech, the court did not proceed to analyze whether the plaintiffs’ First Amendment rights had been violated. The court based its decision on the fact that the plaintiffs made no actual statements, suggesting that had there been a declarative statement—such as a wall post—the court’s decision might have been different. (One of the plaintiffs alleged that he had written a wall post with an expressed opinion, but deleted the post before it could be documented). Critics point out that the court’s ruling that protected speech requires an actual statement is inconsistent with prior First Amendment case law, which identifies various forms of protected speech (e.g., armbands in Tinker v. Des Moines Independent Community School District; flag burning in Texas v. Johnson). This point is a key issue ripe for appeal.
Internet Law experts argue that the court failed to consider the technology behind liking a page on Facebook. For example, Professor Eric Goldman, a prominent legal scholar and blogger, has observed that liking is more than a passive signal of virtual approval and that the like functionality has various effects on Facebook’s algorithm, including increased publicity for the liked page. Although it is unclear whether these underlying changes are sufficient to tip the protected speech scale, Goldman and others argue that these changes should at least be weighed in the court’s decision.
The question for the social media community moving forward is whether other courts will agree that liking should not amount to constitutionally protected speech. Regardless of the outcome, the case provides a good lesson: what you say on a social media network can be used against you.