Judge: Facebook Likes not protected by First Amendment

Judge: Facebook Likes not protected by First Amendment

Summary: U.S. District Judge Raymond Jackson has ruled that Facebook Likes aren't speech protected by the First Amendment. Employees fired for Liking something on the social network have no legal shield.

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Be careful what you Like on Facebook. Clicking the blue thumbs-up button on the social network (or anywhere you can find it on the Web) could one day end up causing you quite a bit of trouble, and you won't be able to legally shield yourself. That's because Facebook Likes are not protected speech under the First Amendment, according to a recent ruling by U.S. District Judge Raymond Jackson.

The case dates back to November 2009, when after winning a re-election against Jim Adams, Hampton Virginia Sheriff B.J. Roberts fired six of his employees for supporting Adams, three of whom had Liked his opponent's Facebook Page. The three civilian workers and three uniformed deputy sheriffs were not pleased and vowed to fight back.

Bobby Bland, Daniel Carter, David Dixon, Robert McCoy, John Sandhofer, and Debra Woodward filed a lawsuit in the Eastern District of Virginia, arguing their First Amendment rights were violated. The judge disagreed, as first reported by Ars Technica.

When it came to the Facebook Likes, Jackson wrote the following:

The sheriff's knowledge of the posts only becomes relevant if the court finds the activity of liking a Facebook page to be constitutionally protected. It is the court's conclusion that merely 'liking' a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed in the record.

Regardless of your opinion on the ruling, you should probably check your privacy settings. If your employer can't see what you've Liked on Facebook, they can't hold it against you.

Well, right up until the point where they ask you for your Facebook password, which is legal everywhere but Maryland, but that's a different story (see links below). Facebook has warned its users they shouldn't let their employers into their accounts, not only because this would violate the service's Statement of Rights and Responsibilities, but also because it potentially exposes the employer to legal liability. This is a perfect example where the employer won anyway.

Nevertheless, this should serve as another reminder that what you do in your private life and what you do online aren't exactly mutually exclusive. Before you share something on the Internet, even if it's just clicking a button, make sure you're okay with everyone knowing about it.

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Topic: Social Enterprise

Emil Protalinski

About Emil Protalinski

Emil is a freelance journalist writing for CNET and ZDNet. Over the years,
he has covered the tech industry for multiple publications, including Ars
Technica, Neowin, and TechSpot.

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17 comments
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  • BS

    "Liking" someone absolutely is speech and if this summary of the ruling is correct then I should sincerely hope it's overtunred on appeal. What kind of country would this be if naked female mud wrestling is protected speech, but actually expressing your approval for someone or some thing is not.
    dsf3g
  • "I dislike this judge"...

    And how wouldn't it be protected by the freedom of speech?
    Samic
  • They killed all the civics teachers

    Does no one here understand what "freedom of speech" refers to? It has nothing to do with you and your employer. Nothing in the Constitution says that everything you say is protected from everyone around you. All it says is that "Congress shall pass no law" abridging freedom of speech, which in turn means that the government cannot fine or imprison you for merely saying something. It does not mean your employer cannot fire you, or your wife can't leave you, or your dog can't bite you.
    Robert Hahn
    • abridge too far

      ((( "...which in turn means that the government cannot fine or imprison you for merely saying something. It does not mean your employer cannot fire you..." )))

      But the government IS the employer in this case.
      buddhistMonkey
      • Not a 'law', but is allowed as a regulation or a contract provision

        An employment contract can restrict your range of actions, including speech, unless expressly forbidden by law.
        Patanjali
  • Hmm....

    I think Robert has a valid point; however, there are laws on the books that prevent employers from using your political views against you.

    In this case, I would say that would be the crux of an argument here, not so much free speech, after all as Robert pointed out it is that "Congress shall pass no law", which means that the law that Obama signed a while back that prevents people from protesting when secret service is present would be illegal; however, an employer firing someone for saying something wouldn't be protected by the first amendment; however, as I said, there are other laws that would protect against this happening.

    As for employers asking for facebook passwords, they can do so until they are blue in the face, I will not share my personal passwords with anyone, except my wife, whom I keep no secrets from anyway.
    cmwade1977
    • Agreed

      Yes, it would appear that the people bringing these lawsuits had terrible lawyers. There were much better lines of attack than the "protected speech" issue, which wouldn't have been relevant at all except that the employer in this case was a public agency, making the government the one "punishing" the speech.

      Every public agency I've ever heard of has multiple layers of protection for employees that guard against wrongful termination of every sort. Surely there was something in there better than "freedom of speech" on which to hang a lawsuit.
      Robert Hahn
  • Judge Bozo the ignorant puppet clown strikes again.

    Judge Bozo shouldn't take cases that are way too complex for his single brain-cell to comprehend.

    This is why the entire judicial system is a complete farcical joke worthy of the 12th century dark ages.
    Reality Bites
  • It also means the government can't fire you for political speech

    Two things.

    First, concerning:
    ". . .ask you for your Facebook password, which is legal everywhere but Maryland,. . ."

    If a person has information on their Facebook page (like marital status or health status, etc. . . ), information that is illegal for an employer to ask for, then even though there is not a specific law about employers asking for 'a Facebook password', it most certainly is illegal for an employer to ask for a password that could lead the employer to information that would be illegal for an employer to use when considering your employment status.

    So there are existing laws that do make it illegal for an employer to ask for a Facebook password. I am surprised that someone has not sued over this. There is a lot if information on Facebook that it is already illegal for an employer to ask about or to have when considering someone for promotions or for employment.

    Second,
    "Does no one here understand what "freedom of speech" refers to?"

    One of the basic reasons for freedom of speech being in the 'Bill Of Rights' is for Freedom Of Political Speech.

    Here we have an elected official firing police based on the political affiliation of workers. A person saying, "I like that politician" is most certainly protected speech.

    This is totally different from an 'at will' employee being fired at a private company.

    This judge does not have a clue. This will most certainly be overturned at appeal.
    John238
    • Has more clue than the article says

      Actually, the judge got into the issue of what sort of speech it was, and concluded that none of the plaintiffs engaged in speech concerning a public issue, of the sort that courts have long held protected. The closest any one of them came was a statement that expressed his own dislike for his employer... which the judge properly concluded was not a political statement but a statement about the speaker's personal gripes.

      You and the judge have a disagreement over whether clicking a "Like" button on Facebook constitutes a statement as specific as "I like this politician." The judge would say you are speculating; that the person might just as well have meant they liked a photo on the page, or the cute doggie, or anything else. Before you start awarding damages, you have to know for sure. Nothing in the record said for sure.
      Robert Hahn
      • Existentialists can make anything 'speculation'

        Actually I know what the judge said and the judge is clueless.

        By the judges logic a non-verbal 'vote' would also not be protected speech. You see because the 'vote' could mean, and sometimes does mean, the voter simply liked the suit, or the persons dog, or the persons wife, or etc. . . . While a 'like' could mean many things it is obvious that the people were fired, not because the people liked a picture on the page but, because of the political ideals the people held.

        Protection for speech is not predicated on the speech being absolutely, without a doubt, 100% political. If that were the case almost no speech would be protected. Even pictures that may not be political but could be, possibly be, may be political are protected by existing precedent and existing law.

        These government employees were fired because of their political views. They were fired for the slightest and most trivial of support for one political person over another.

        The judge disagrees with precedent and with existing interpretation of existing law.

        Again, the judge is clueless and will be overturned on appeal.
        John238
      • 'Vote' is a direction to specific consequences, whereas 'Like' is vague

        @John238
        The issue in each of the cases is what is the intent. A 'Vote' is intended to signal a definite preference for a particular result. A 'Like' does not automatically indicate anything IN PARTICULAR, so 'Liking' a politition's page cannot necessarilly infer a political statement is being made. To do that, some words are necessary.

        Did you actually read any of the judgement? The problems were that they brought the case based upon their political views, but could not PROVE that the Sherrif DID know their political views, and thus did not make the first step for the establishment of the premise that their views were the PRINCIPAL reason for their dismissal.
        Patanjali
  • Good Advice!

    Social Networking is here to stay, sadly. So if you must participate - know the repercussions of your actions. Or just close your Facebook account - that's an idea.
    jpr75_z
  • There is no privacy

    Dumping your entire life onto the internet via FB or Google or wherever is foolish anyway. Reality continues to show that people, hackers, employers, corporations, insurance companies, credit companies, and government will keep drilling their way into knowing more about you than you have forgotten about yourself. Some say you are protected by this law or that law now, but tradition shows that laws slowly are changed/modified and you don't even see it. McCarthyism did it. Just look at how many states justified lotteries by claiming ALL the money would go to education. Now, check out if ANY of those states still send even a majority of the income to education.

    Technology is making people into lemmings.
    dannyfixit07
  • Another reason not to get into social networks

    The best way to protect one's self from getting into trouble is to abstain from doing the activity. I had a Facebook page and after a short while, I closed the account. My reason for doing so is my life is my business, not the whole worlds. You will find that if you tell everyone everything, it will come back to haunt you in the future, as someone will use it against you.
    txmadmansatx
  • Everybody keeps concentrating a the "like" thing

    But the case is a hell of a lot more complex than just a stupid "like" on Facebook, which was nothing more than a stupid defense tactic to begin.
    wackoae
  • Not really a free speech issue

    I don't know about all of the details of this case, but it doesn't look like a free speech issue to me, it's an employment contract issue. Does their employment agreement permit them to be fired for any reason? That's the big issue here. I support absolute free speech to the point that I think that shouting "Fire" in a crowded theater should be legal, that stuff like http://www.dirtyphonebook.com is acceptable legally, and many other common hated examples of free speech should be legal. But I believe that this dispute in and of itself is an employment issue, not a free speech issue. You should have the absolute right to say anything that you want, and your employer should have the right to take any action that he wants in response - including firing them, if thats permitted in the employment agreement. That being said I feel for people that lost their job.
    RedE