Score a victory for free speech on social media.
In case you missed it, the U.S. Fourth Circuit Court of Appeals in Richmond recently overturned a lower court decision in a closely watched lawsuit involving First Amendment protections on social media (Bland v. Roberts 12-1671).
The suit centered on state employees of a sheriff's office who were fired for clicking “Like” on Facebook. The appeals court struck down a ruling by the circuit court judge stating that such social media activity is not protected free speech under the First Amendment.
This is a significant court decision because many people may take online free speech rights for granted, particularly with the proliferation of social media. However, uniform legal standards are still in dispute and hotly debated nationwide.
In the lower court ruling, federal district Judge Raymond A. Jackson of Newport News, Virginia, dismissed a lawsuit by two deputy sheriffs who asserted they were unlawfully fired for “Liking” the Facebook page of the sheriff’s political adversary.
Facebook stated in its amicus brief: “If Carter [deputy sheriff] had stood on a street corner and announced, `I like Jim Adams [sheriff's opponent) for Hampton sheriff,' there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of a computer's mouse, does not deprive Carter's speech of constitutional protection.”
However, the judge saw it differently.
In tossing out the case, Judge Jackson wrote: “Merely ‘liking’ a page on Facebook is insufficient speech to merit Constitutional protection.”
The decision, about a year ago, set off alarm bells for advocates of free speech and online privacy. It raised the question of whether public employees can legally be terminated for simply “Liking” something on social media even though their employer may find the content distasteful or simply disagree with it.
Appeals Court Gives Thumbs Up to Plaintiffs
At the time of the lower court ruling, which sanctioned the firings, I wrote:
"The issue of free speech on social media should neither be viewed lightly nor taken for granted. The world has already observed blatant social media censorship and blocking of Internet access to citizens in communist countries, like China, for example."
"While legal scholars and attorneys have voiced varying views on this case, the conventional wisdom appears to be that pressing the “Like” button on Facebook is unequivocally protected free speech."
Fortunately the appeals court agreed, ruling that clicking Facebook’s thumbs-up “Like” icon “is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”
The court added, “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.”
While this ruling is good news, we should nonetheless be mindful that online free speech presents a plethora of novel legal issues in today’s fast evolving digital age.
Therefore, as traditional legal theory expands to address online free speech issues we should remain vigilant and cognizant of our constitutional rights on social media.
Bottom line: the judicial branch must continue to safeguard our cherished First Amendment freedoms whether online or off.
* All views and opinions are those of the author only.