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I Don't Like This Opinion; Facebook 'Like' as Free Speech?

I could comfortably retire if I had a dollar for every time in my career that I have heard, 'But I have a right to free speech; I can say what I want and not get fired.'

May 15, 2012
Related Topics: Wrongful Discharge, Technology and the Law, Social Media
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One of the biggest misnomers that people have about their rights in the workplace relates to free speech and the First Amendment.

I could comfortably retire if I had a dollar for every time in my career that I have heard, "But I have a right to free speech; I can say what I want and not get fired." The reality is that private-sector employees have no right to free speech. The First Amendment only protects public employees.

The issue of free speech arose in a novel context in Bland v. Roberts (E.D. Va. 4/24/12). B.J. Roberts, the sheriff of Hampton, Virginia, was running for re-election. He learned that some of his employees supported his opponent, Jim Adams, after discovering that they had "liked" Adams' Facebook page. After Roberts won re-election, he decided not to retain the services of the Adams supporters. The employees claimed that Roberts had violated their free speech rights (as exercised via their Facebook "like" of his opponent).

The court disagreed, concluding that merely clicking the "like" button on a Facebook page is not constitutionally protected speech:

It is the Court's conclusion that merely "liking" a Facebook page is insufficient speech to merit constitutional protection. … It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of [the] posts from one click of a button. … For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper.

I was going to write a long, detailed, explanation of how the court got it wrong in this case, how "liking" a Facebook page expresses one's support for, or positive opinion about, that Page. But, Professor Eugene Volokh, writing at The Volokh Conspiracy, beat me to it:

A Facebook "like" is a means of conveying a message of support for the thing you're liking. That's the whole point of the "like" button; that's what people intend by clicking "like," and that's what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the "like" conveyed. I would treat "liking" as verbal expression—though it takes just one mouse click, it publishes to the world text that says that you like something. …

To be sure, the message isn't highly detailed; it doesn't explain why one is supporting the "liked" person or cause. But the First Amendment protects speech even when the speech is not rich with logical argument, or is even vague or ambiguous. …

Putting a "Jim Adams" bumper sticker on one's car would be constitutionally protected. Putting such a sign on one's lawn would be constitutionally protected. "Liking" Jim Adams on Facebook is equally constitutionally protected. If the plaintiffs appeal, I expect the Fourth Circuit will reverse the district court on this point.

Thanks, Professor Volokh. I couldn't have said it better myself.

To visit the Ohio Employer's Law Blog, click here or email jth@kjk.com or call (216) 736-7226.

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