Thursday, May 3, 2012

Facebook "Like" Not Protected by the First Amendment? - COTW #90

Public employees generally have a First Amendment right to speak on matters of public concern (which is weighed against their employer's interest in providing efficient and effective services to the public). In Bland v. Roberts (opinion here), the Eastern District of Virginia analyzed whether a public employee's Facebook "Like" receives First Amendment protection.

The plaintiffs worked in a sheriff's office. They claim the Sheriff discovered they were supporting a challenger during an election year by, among other things, "Liking" the challenger's Facebook page. After the Sheriff got reelected, he chose not to retain the plaintiffs. Does the First Amendment protect their Facebook "Likes"?

The Court held:
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 within the record . . . . These illustrative cases differ markedly from the case at hand in one crucial way: Both [cases] involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection.
This analysis strikes me as odd because the Court cites no precedent for the notion that the First Amendment requires a "statement," or why a Facebook "Like" is not a statement - the fact that other Facebook cases involved express statements seems irrelevant.

As Prof. Volokh points out, "liking" could be treated as verbal expression even though it requires only a mouse click (although I disagree with his assumption regarding what statement clicking "Like" makes, I agree that it conveys something). He also points out that the First Amendment protects symbolic expression (ex. flag-burning case).

Of course, this is just one district court in Virginia. But, it's tough to find any precedent on some of these social media issues so every opinion counts. I suspect other courts will find that Facebook "Likes" are protected under some circumstances.