While most users of Facebook and similar social media sites may assume that all online activity is protected free speech, this might not always be the case — including for public sector employees. One recent judicial ruling, which has set off alarm bells among online free speech advocates, should cause govies to take notice since it involves a local government.
“Insufficient speech” online?
Judge Raymond A. Jackson of the Federal District Court in Newport News, Virginia, recently dismissed a lawsuit by government employees of a local sheriff’s department who claimed they were unlawfully fired for clicking Facebook’s “Like” button. In tossing out the case, the judge wrote:
“Merely ‘liking’ a page on Facebook is insufficient speech to merit Constitutional protection.”
Specifically, the case involves deputy sheriffs who “Liked” the Facebook page of the sheriff’s political adversary. This begs the question whether “Liking” on Facebook is protected free speech under the First Amendment? Judge Jackson said no, but many others are saying yes. The case is currently pending appeal before a panel of judges in Richmond.
Is Facebook free speech? — Richmond Times-Dispatch
Historically, the judicial branch of government — up to and including the U.S. Supreme Court — has provided broad Constitutional protections for free speech. Therefore, it’s possible this case may be a mere isolated incident involving the thinking of one district court judge reportedly known for controversial decisions.
Nevertheless, 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 Internet access to citizens in communist countries, like China, for example.
Constitutional legal theorists will be forced to address novel issues of online speech as new technologies continue to evolve in the 21st century information age.
Views about online speech may vary depending upon whom is asked. One civil rights lawyer, Avery Friedman, said during an interview on CNN:
“As soon as you hit ‘Like’ that means you supported someone and believe in that person – and I think that’s why these [sheriff’s] deputies were fired.”
Criminal defense attorney Richard Herman said on the same CNN segment that one argument may center on whether clicking “Like” in this particular situation was disruptive to this particular workplace.
“Courts are getting flooded with this from Facebook to Twitter,” Herman observed. “Is a simple expression of a thumbs-up or thumbs-down akin to someone standing up on a street corner and saying, ‘I like this opponent. This opponent is better’?”
An editorial in the Washington Post states, in part:
“To be sure, Facebook and other social media are new technologies, so the relevant legal doctrine is evolving; Judge Jackson, in that sense, wrote on a blank slate…[“Liking”] can express a range of opinion — from idle curiosity to intense support.”
The Associated Press reports: “Facebook said clicking `Like’ was the 21st century equivalent of a campaign yard sign.”
According to AP, Facebook wrote in a friend-of-the-court (amicus) brief filed with the U.S. Court of Appeals for the Fourth Circuit:
“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.”
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.
This is still America, of course, which still has the greatest democratic government on the planet. Although our politicians are far from perfect, we still live in the world’s model democracy — which is honored and envied by freedom loving people everywhere.
Nevertheless, as traditional legal theory adapts and expands to address online free speech issues, we should all be vigilant in ensuring that our First Amendment rights are always protected.
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*** All views and opinions expressed are those of the author only.