Like it or not
May 6, 2012 12:28 PM   Subscribe

Is liking a post on Facebook protected by the First Amendment? A US District Court says no.

The ruling came about through a wrongful termination case in Virginia, where six people say a sheriff fired them for supporting an opponent in 2009 during his re-election bid. The workers liked the opponent's Facebook page. The workers sued, saying they'd had their First Amendment rights violated.

Even though other cases have held that writing on Facebook is a form of protected speech, this ruling holds that pushing the like button does not involve words, so it is not covered by this earlier precedent.
posted by notme (61 comments total) 14 users marked this as a favorite

 
Goodbye internet. Call me when you have your legal problems worked out.
posted by Brent Parker at 12:32 PM on May 6, 2012 [3 favorites]


This post is a favorite of mine. Sorry for typing it out, but just clicking would not constitute communicating anything to you.
posted by furiousxgeorge at 12:33 PM on May 6, 2012 [50 favorites]


Like it or not, the precedent says that giving money is protected speech, even though it doesn't involve words. I'm pretty sure this will get struck down on appeal.
posted by Faint of Butt at 12:36 PM on May 6, 2012 [18 favorites]


I'm curious. Is the judge stupid, corrupt, or techno-ignorant?
posted by benito.strauss at 12:41 PM on May 6, 2012 [13 favorites]


Speech = language = symbols
posted by stbalbach at 12:42 PM on May 6, 2012 [2 favorites]


Yeah this decision was nuts. A Facebook 'like' is a discrete, intentional, often public gesture of approval. How it is any different from waving a sign saying "I like Candidate X" completely eludes me, and the court did not go into detail.

What's more, consider the potential repercussions of deciding that a 'like' is not covered by the First Amendment. As the case illustrates, employees could be fired for 'liking' the wrong thing, but it goes further than that. The government could criminalize 'liking' the wrong thing. It could require a special 'Facebook license' before you could 'like' something. It could institute a tax on 'likes.' The implications are staggering.

I hope there is an appeal and this nonsense is promptly reversed.
posted by jedicus at 12:42 PM on May 6, 2012 [9 favorites]


This is just silly and will be overturned. Wearing black armbands is protected speech, and doesn't involve words either.
posted by Garm at 12:42 PM on May 6, 2012 [8 favorites]


A bag full of money: political speech
Like button on candidate's facebook: unprotected non-speech

Thanks America, I think I understand
posted by crayz at 12:42 PM on May 6, 2012 [18 favorites]


If this is upheld on appeal, I'll eat the fedora of the mefite of your choosing.
posted by to sir with millipedes at 12:43 PM on May 6, 2012 [6 favorites]


A stupid ruling that will be reversed. Not "stupid" as in I disagree, but "stupid" in a literal sense, like an accountant who doesn't quite grasp what "double-entry" means. This judge shouldn't be sitting.
posted by tyllwin at 12:43 PM on May 6, 2012 [16 favorites]


It's also a little strange, since you have to "like" pages in order to follow them and sometimes to post on them. I can see savvy staffers wanting to keep track of the other side's positions and statements. More importantly, this seems like micro-managing at a serious and somewhat creepy level. Can cupcake-lovers get fired if they happen to work at a gym, yet still enjoy coupons from Delicious Butter and Cholesterol R' Us? What about thumbs-ups in real life?

Bitter Boss: Do you lift up your thumb at them, sir?
posted by jetlagaddict at 12:45 PM on May 6, 2012 [5 favorites]


Please, no one tell to sir with millipedes about my bacon fedora.
posted by Seamus at 12:47 PM on May 6, 2012 [2 favorites]


It's also a little strange, since you have to "like" pages in order to follow them

For this very reason, I occasionally like things I actually don't.
posted by JaredSeth at 12:49 PM on May 6, 2012 [2 favorites]


Civil servants are never expected to express their personal political opinions in public. And I don't see how insubordination is a free speech issue.
posted by Yowser at 12:50 PM on May 6, 2012


So, wait, if it wasn't speech, why were these people fired?
posted by Sys Rq at 12:51 PM on May 6, 2012 [11 favorites]


If this is upheld on appeal, I'll eat the fedora of the mefite of your choosing.

I would direct you to eat LH's hat, but that might sound a mite inappropriate.
posted by Nomyte at 12:53 PM on May 6, 2012 [1 favorite]


"he wanted to replace them with sworn deputies while others were dismissed because of poor performance or his belief that their actions “hindered the harmony and efficiency of the office.”"
posted by Yowser at 12:53 PM on May 6, 2012


Civil servants are never expected to express their personal political opinions in public.

That isn't the law. A public employee is entirely entitled to make personal political speech on their own time.
posted by tyllwin at 12:58 PM on May 6, 2012 [7 favorites]


Civil servants are never expected to express their personal political opinions in public

If you actually meant "expected never to express", then that's simply not the law or the reality. Otherwise, you seem to be confusing "expected" with "permitted" - which again is neither the law nor the reality.

And I don't see how insubordination is a free speech issue.

If there were any insubordination occurring here you might have a point.
posted by Inspector.Gadget at 1:07 PM on May 6, 2012 [4 favorites]


WV BoE vs Barnette:

There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical reiment. Symbols of State often convey political ideas just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn.

From this I conclude that Carter only needs to say that he intended the like to be a symbol of support and loyalty to have his action declared to be speech. However, that does not mean that his speech will be found to have been a factor in his termination.
posted by michaelh at 1:09 PM on May 6, 2012


Does anyone else find it annoying that the NYTimes story doesn't list the case name, nor does it give a link to the opinion? I didn't realize until just now that notme had linked to it in the FPP, I'd gone searching for it.

I cannot think what possessed this judge (representing my federal district, by the way) to rule this way. Clicking a button on a screen isn't meaningful speech? THAT IS HOW WE FUCKING VOTE, DUMBASS.
posted by Riki tiki at 1:12 PM on May 6, 2012 [25 favorites]


That judge is an idiot and I'm guessing this will be overturned.

The interesting thing is that if this had been a non-government jobs, like if Coke employees had "liked" pepsi, there would be no recourse at all.
posted by delmoi at 1:14 PM on May 6, 2012 [2 favorites]


Interestingly, this is the sort of nonsense that has forced the Supreme Court to repeatedly uphold the Hatch Act denying them full free speech rights.

The problem is that any speech that is protected by law might be required by your employer. So Congress decided to deny employees the right to engage in a wide variety of expressive activities, and as much as I hate it, I can't help suspecting that they were right. For every wrongful termination that results in a lawsuit, there are going to be dozens of employees who feel obliged to "like" their bosses' re-election or else stand to lose their jobs. Better to deny that they have the right to do it at all. There's similar evidence that corporations were forcing employees to make political contributions in order to funnel money to specific candidates before Citizens United let them do it directly.

Of course, the decision itself seems likely to be appealed and overturned. But the fact that employees political speech gets dominated and used by employers is something we still need to deal with better than we currently do.
posted by anotherpanacea at 1:16 PM on May 6, 2012 [3 favorites]


delmoi: " if this had been a non-government jobs, like if Coke employees had "liked" pepsi, there would be no recourse at all."

Beyond the more abstract issue where private corporations are replacing government services these days, I'm okay with that. If you work for a private company, it's assumed that you may be required to not undermine it publicly.
posted by Riki tiki at 1:28 PM on May 6, 2012 [1 favorite]


Interesting. Pressing the "Like" button on Facebook gets you fired from your job and is then ruled by an obviously mentally incompetent judge, to NOT be a protected element of free speech, but the NRA and the GOTP says that pulling a trigger on an unarmed teen in a gated community is a non-punishable right. Is killing with a gun and pulling a trigger a free speech right? Will the argument ever be made thus, because it would seem to me if money is free speech, than why the hell can't bullets fired at someone be a form of protected "free speech."

Heck, why isn't Genocide considered free speech on a grand scale then? I mean the scale of the Expression shouldn't dictate whether it's allowed or not, the same way someone a corporation/person can have a billion dollars, why should they be punished with paying more taxes than others for their epic success? That's their Merican Right to be as wealthy and obscenely selfish as the want with that money and if they spend the money on expressing their free speech by buying weaponry and killing a certain ethnic group, isn't that their right to use that money to turn it into an expression of their will???
posted by Skygazer at 1:34 PM on May 6, 2012


"Civil servants are never expected to express their personal political opinions in public."

In the U.S., they absolutely have the right to express political opinions in public. Three-quarters of public comment at our school board meetings is teacher-employees typically disagreeing with how the district is doing things.

Dozens of my school district's employees campaigned against me, and I have no doubt that in any subsequent election would do so again. (Others campaigned for me! There were four candidates!) I have a neighbor three doors down who is also one of our high-level school district employees, who supported my opponent in our most recent election and campaigned for him (yard signs and all! socially awkward!). I won. We're cool. He's still employed.

And even if we weren't cool, he'd still be employed, because he absolutely has a right to campaign for and against whomever he wants, as that is quintessential protected political speech. And it's absolutely absurd to say that the 2700 employees of our district, many of whom live in the school district, who are directly impacted by our decisions as employees, taxpayers, and parents, have no right to speak out about what they see in the schools every day. It's also absurd to say they shouldn't "like" things on Facebook that they EITHER are expressing agreement with OR are following for future updates. (In fact, if "liking" a page isn't speech, it's arguably protected by freedom of association.)

It occasionally creates the maddening situation where employees have the right to speak on something but we don't have the right to respond (it's about a personnel issue, or a lawsuit facing the district, or something like that). But that's life in the big democracy, dude. These are the small hassles we suffer for the great good of free speech.
posted by Eyebrows McGee at 1:38 PM on May 6, 2012 [9 favorites]


I like all kinds of stuff on Facebook that I don't really like, just to see what's going on. Of course, there are limits to what I'll like--true hate speech, vile sexual abuse crap--but on a business or political level, nothing's off limits.
posted by etaoin at 1:41 PM on May 6, 2012


I do wonder if the tenor of the conversation (or the details of the ruling) would change if the emotionally loaded term "like" were replaced with something else (like "follow," which has emotional baggage of its own, or "reading"). It might just be me, but I don't "like" many things on Facebook, even if I want to see more information, because I don't like what I'm trying to get information on.
posted by jscalzi at 1:41 PM on May 6, 2012 [2 favorites]


Does anyone else find it annoying that the NYTimes story doesn't list the case name, nor does it give a link to the opinion? I didn't realize until just now that notme had linked to it in the FPP, I'd gone searching for it.

I certainly agree. I would much rather read the opinion than read a reporter's understanding of the opinion. Thus the link in the FPP. I hope others who post about judicial rulings follow suit.
posted by notme at 1:46 PM on May 6, 2012 [1 favorite]


Will the argument ever be made thus, because it would seem to me if money is free speech, than why the hell can't bullets fired at someone be a form of protected "free speech."

Come on dude, if you're going to do this you should give everyone else in the thread spittle aprons first.
posted by Inspector.Gadget at 1:59 PM on May 6, 2012 [2 favorites]


So is giving out spittle aprons protected by the first amendment?
posted by fuq at 2:04 PM on May 6, 2012 [4 favorites]


So if I flag this post as fantastic ...
posted by PapaLobo at 2:05 PM on May 6, 2012


I do wonder if the tenor of the conversation (or the details of the ruling) would change if the emotionally loaded term "like" were replaced with something else (like "follow," which has emotional baggage of its own, or "reading")

That's a fair point, but 'like' has a very definite connotation on Facebook. For example, posts about a mixture of good and bad news often garner comments to the effect of "I'm only 'liking' the good part, not the bad. People understand that 'like' signifies appreciation, approval, or agreement.

If Facebook had chosen something neutral such as "reading" or "bookmark," then that would certainly influence the discussion. Nonetheless, I think even a completely neutral term would not change the fact that it is a speech act. At a minimum it signals "this is worth hearing about, for some unspecified reason."

Denying the right to "read" or "bookmark" a Facebook post also implicates the right to hear the speech of others, which is a key part of free speech, at least in my mind.
posted by jedicus at 2:12 PM on May 6, 2012


it would seem to me if money is free speech, than why the hell can't bullets fired at someone be a form of protected "free speech."

Are we in the matrix? Because the only person I've ever seen pull off leaps as impressive as this one befor was Neo.

"whoa."
posted by to sir with millipedes at 2:18 PM on May 6, 2012 [3 favorites]


Even aside from the explicit protection of expression in the law ... writing is not literally speech. So there goes all sorts of precedent. Neither is ASL, or any other signed language.

Christ, what an asshat.
posted by spaceman_spiff at 2:20 PM on May 6, 2012


This is completely absurd bullshit. The court doesn't even cite anything to support the radical proposition that "Simply liking a Facebook page . . . is not the kind of substantive statement that has previously warranted constitutional protection." It then goes on to suggest that the act of putting a political bumper sticker on a car would be enough to get First Amendment protection except that they didn't prove the defendants knew about the bumper sticker. I am at a complete loss how anyone can meaningfully distinguish the act of putting a candidate's bumper sticker on your car from the act of publicly liking a candidate's Facebook page.

That said, lest we get too upset about it (except on behalf of these specific plaintiffs, who have to deal with this nonsense) this isn't the law and it ought to be overturned.
posted by dixiecupdrinking at 2:33 PM on May 6, 2012


(Well I suppose one could draw the distinction noted above, that "liking" could be more of a bookmarking function. That is still an unbelievably unfair interpretation for the plaintiffs and seems beyond the pale to me on summary judgment.)
posted by dixiecupdrinking at 2:36 PM on May 6, 2012


Haven't flagburning and lapdancing also been upheld as protected "speech"?
posted by toodleydoodley at 2:54 PM on May 6, 2012 [1 favorite]


Behind every bad decision by a judge are law clerks. Judges make decisions, but clerks sometimes have a say and often put together the arguments. If the judge here didn't get something about Facebook, more than likely a clerk would have and would have talked to the judge about the technology. I doubt that this is an issue of not getting technology, but rather the judge's opinion that doing something akin to subscribing to the Facebook posts of another is not speech.

However, the judge would then be using false reasoning. The very name, "Like," suggests opinion. Historically Facebook was a social network that allowed individuals to show their friendship and support by "liking" another individual or institution. It may be ambiguous whether "liking" the opposing candidate was speech, but the better ruling would have been to rule that presumptively it was speech because the authors said it was. Such a ruling would not have been harmful as there were still two other elements to the test involved to see if a violation had occurred. What the judge got very wrong was that if the employees were fired for "liking" the opponent, then their actions were perceived as speech - and firing for speaking is at the heart of the cause of action.

I cannot think how this was a good decision on any level.
posted by Muddler at 3:00 PM on May 6, 2012


As penny arcade might point out, if a "Like" isn't speech, why was the sheriff upset?
posted by -harlequin- at 3:09 PM on May 6, 2012


Maybe they were just using the like button to flag things that they disagree with.

But seriously, a click can be a signal, which is a communication.

Knock three times
On the ceiling if you want me.
Ohh, ohh, twice on the pipe
If the answer is no.
(knock knock knock) Oh my sweetness,
Means you'll meet me
In the hallway.
Mmm-hmm, twice on the pipe (Clank Clank)
Means you ain't gonna show.


But is it speech? Can you fraudulently tap your brake pedal -- can flashing lights be an unwritten contract? Is winking my left eye protected?

How many letters do I have to tap out in Morse code before it becomes speech? E and T are just one "click," so I guess they're not protected, so let's set those two aside. How much can you really say without E and T?

Speech is a situational construct of an interpersonal transaction, and everybody knows what that means, until someone decides they don't want to cooperate with the unwritten assumption that communication happens in many ways. Ordinary spoken speech doesn't even work without all these other signals for context.
posted by StickyCarpet at 4:02 PM on May 6, 2012 [4 favorites]


So all those people sporting "I like Ike" buttons weren't exercising free speech as part of a grassroots effort to convince Dwight D. Eisenhower to run for president?
posted by headnsouth at 5:06 PM on May 6, 2012 [3 favorites]


Reversed in 5 . 4 . 3 . 2 . 1

An act communicating support for a political candidate? Core political speech.
posted by Ironmouth at 5:20 PM on May 6, 2012


Will the argument ever be made thus, because it would seem to me if money is free speech, than why the hell can't bullets fired at someone be a form of protected "free speech."

Come on dude, if you're going to do this you should give everyone else in the thread spittle aprons first.


If by "this" you mean predict Rush Limbaugh's future talking points, then yeah, probably.
posted by Kid Charlemagne at 5:58 PM on May 6, 2012 [1 favorite]


Only tangentially to the point at hand, but it's really creepy (altho not totally unexpected) to have a Sheriff wanting to retaliate against people who backed an opponent. Sheriff's offices, School Superintendents, and other similar local races where you at least HOPE the candidates have specific technical expertise (law enforcement, education) - well, guess what? The opponents are often employees of the department. For this reason, these and other local races are often a bit more genteel, since everyone involved is still going to have to go to work with everyone else after it's over, or at least continue to live in the same town. I've seen this eroding in local politics in the last ten years or so, and I attribute that to the Karl Rove-ification of America. I know it's more complex than that; that's just my handy label for the thing.
posted by randomkeystrike at 6:19 PM on May 6, 2012


Clearly this judge is just confused.
You should help explain this bold new internet to him using the medium in question.

http://www.facebook.com/GuideToInternet
posted by Winnemac at 6:34 PM on May 6, 2012


The Hatch Act is nowhere near as restrictive as a lot of people (including lots of government employees) think it is. Look at this: "These federal and D.C. employees may...express opinions about candidates and issues,....campaign for or against candidates in partisan elections," etc. They can't fundraise, and they can't engage in political activities while on duty or while acting in an official capacity, but they absolutely can have political opinions.
posted by naoko at 6:35 PM on May 6, 2012 [1 favorite]


Me tired always lose to SuperFriends. Me go home to Bizarro World where everything backwards. There, losing equal winning.
posted by Mike Mongo at 6:58 PM on May 6, 2012


I can't see how a Facebook like, a database with a list of names that support a certain thing, is any different from signing a petition, a piece of paper with a list of names that support a certain thing.
posted by a debt owed at 7:31 PM on May 6, 2012 [1 favorite]


It's not. This will be overturned. I'm not sure there is a lot more to say.
posted by Justinian at 7:56 PM on May 6, 2012 [1 favorite]



I love the idea of a sherrif firing people for liking.


It is just so wonderfully naked and raw.
posted by srboisvert at 5:01 AM on May 7, 2012 [1 favorite]


I still think there needs to be a way to discipline judges that make such absurd rulings. This just adds to the work level and expense to the system, on account of official idiocy.
posted by Goofyy at 5:21 AM on May 7, 2012 [1 favorite]


Do you lift up your thumb at them, sir?

No, sir, I do not lift up my thumb at them, sir, but I lift up my thumb, sir.



Just wanted to let you know someone got it.
posted by EmpressCallipygos at 6:10 AM on May 7, 2012 [2 favorites]


I use Facebook likes strictly as an "I'm interested in receiving updates about this person or subject" toggle switch. Seems like you could craft a pretty strong argument around this. "I simply wanted to be notified of everything his opponent was doing and posting."
posted by nathancaswell at 6:34 AM on May 7, 2012


Yowser: And I don't see how insubordination is a free speech issue.

Inspector.Gadget: If there were any insubordination occurring here you might have a point.

Also, if insubordination during their off-time work were grounds for firing... Drat that pesky ol' "Rule of Law" thing!
posted by IAmBroom at 10:08 AM on May 7, 2012


StickyCarpet : Can you fraudulently tap your brake pedal -- can flashing lights be an unwritten contract? Is winking my left eye protected?

Flashing your headlights to warn of a speed trap has been ruled protected free speech, as has flipping your finger at a police officer. This ruling is ridiculously out of line with long-established, parallel precedents.
posted by IAmBroom at 10:11 AM on May 7, 2012 [1 favorite]


They can't fundraise, and they can't engage in political activities while on duty or while acting in an official capacity, but they absolutely can have political opinions.

Activities that Federal employees I know have gotten in trouble for include: having a blog, holding a sign at a political rally, and posting status updates about upcoming elections. The Hatch Act doesn't explicitly address any of these, but it authorizes a broader penumbra of restrictions that are being enforced at the agency level.

The point of the 1st Amendment isn't to protect free opinion-holding: it's to protect the expression and exercise of one's opinions. (Although the Supreme Court doesn't see it that way, so what do I know?)
posted by anotherpanacea at 10:15 AM on May 7, 2012 [1 favorite]


To the people who say this will be changed: it hasn't yet, so 'like'ing is currently not protected speech right? So until it is overturned on appeal, whenever that happens after the process, the law on America is that 'like'ing is not speech. How long until it is overturned? In the meantime, couldn't a judge make a ruling based on this precident?

And anyways, rights are only good when people know them and they are enforced.
posted by fuq at 12:53 PM on May 7, 2012 [1 favorite]


It's official, God is drunk.
posted by Twang at 6:50 PM on May 7, 2012


Activities that Federal employees I know have gotten in trouble for include: having a blog, holding a sign at a political rally, and posting status updates about upcoming elections. The Hatch Act doesn't explicitly address any of these

I can't see how those activities don't fall under "may express opinions about candidates and issues" or "may campaign for or against candidates in partisan elections." Unless your friends work in one of the agencies with more stringent restrictions, I'd say they were pretty clearly in the right.
posted by naoko at 10:08 AM on May 8, 2012


I don't want to get into a CFR-quote battle, but the Comptroller General gets to decide if an agency can have more strict requirements than the general ones, and those requirements can and do include the activities I described. Maybe they would have won the lawsuit after they got fired, but in every case they decided to tone it down and not make waves. "Who cares whether I carry the sign or my husband does?" That's how most people do it.
posted by anotherpanacea at 10:47 AM on May 8, 2012


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