Facebook "Like" Button Not Protected as Free Speech, Federal Court Rules

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.