Be
careful what you "like" on Facebook: The click of that button
is not protected as free speech, one federal judge has ruled.
Bobby Bland and several others were employed as civilian workers
by the Hampton, Virginia Sherriff's Office. The Sheriff, B.J.
Roberts, ran for re-election against Jim Adams, and the plaintiffs were
apparently not in favor of their boss being reelected.
In fact, three of the plaintiffs went so far as to
"like" Adams' Facebook page.
Unfortunately for them, their boss won the election, and he
decided to not retain the plaintiffs as employees of the Sheriff's Office. They sued him for unlawful termination.
The Sheriff justified the firings on cost-cutting and budgeting
grounds, but the plaintiffs argued that the terminations clearly violated
their First Amendment rights. The Court granted Sheriff Roberts’ motion
for summary judgment, dismissing the plaintiffs' case.
The judge held that "simply liking a Facebook page"
was not a "substantive statement" that warranted constitutional
protection. The Court said that it would not attempt to "infer the
actual content" of the message from "one click of a button."
The Court wrote that "Facebook posts can be
considered matters of public concern; however, the Court does not believe [it
to be] sufficient speech to garner First Amendment protection." (emphasis
in original).
The ruling raises interesting questions about the odd
"speech vs. conduct" divide.
For example, according to the U.S. Supreme Court, burning an
American flag carries sufficient expressive content to be protected speech.
In Texas v. Johnson, the Supreme Court acknowledged that conduct may be
"sufficiently imbued with elements of communication to fall
within the scope" of the First Amendment.
In deciding whether particular conduct
possesses sufficient communicative elements to bring the First Amendment into
play, the Supreme Court asked whether "an intent to convey a
particularized message was present, and [whether] the likelihood was great that
the message would be understood by those who viewed it."
The Supreme Court found that, under the
circumstances, "Johnson's burning of the flag constituted expressive conduct,
permitting him to invoke the First Amendment...Occurring as it did at the end
of a demonstration coinciding with the Republican National Convention, the
expressive, overtly political nature of the conduct was both intentional and
overwhelmingly apparent."
But the intent and message behind giving a Facebook "thumbs up"
to the candidate running against your boss is not overwhelmingly apparent?
It sure seemed pretty apparent to their boss what it meant, but apparently not
to the Court.
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