In the US District Court of Eastern Virginia, a judge has ruled that “Likes” on Facebook do not garner the same protections as other forms of expression as laid out in the First Amendment.
Are Facebook “likes” of a political candidate protected forms of speech like wearing a campaign pin, creating signs and murals, or other forms of political expression? According to the District Court of Eastern Virginia, the answer is “no.”
The plaintiffs in the case Bland v. Roberts, 2012 claimed that Sheriff Roberts, recently re-elected, decided to terminate their employment after the election season due to their endorsement of his opponent on Facebook. Their endorsement consisted of “liking” the candidate’s Facebook page. Sheriff Roberts claims that he simply had to let the plaintiffs go for cost-cutting and budgetary requirements.
The court ruled that simply liking the page did not constitute enough of an activity to be protected as speech. The court said: “In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.”
This is especially troubling, as the court has access to numerous First Amendment precedents stating that protected speech is not required to be actual speech, such as Tinker v. Des Moines, which established that wearing black arm bands in protest of governmental actions in Vietnam was protected, and Texas v. Johnson, which established that even flag burning is protected under the First Amendment.
Perhaps the court was simply confused by the difference between “liking” something on Facebook and telling someone that you like something in the course of a conversation. Or, perhaps the court doesn’t realize the implications of liking something on Facebook, which includes publicly listing your support on the page, informing your friends list about your like, informing the owner of the page, and even allowing advertisers to use that information to tailor ads for you or your friends. It certainly isn’t just “one click of a button on [a specific] Facebook page.”
The court also laid the foundation for a qualified immunity defense for Roberts, although whether this position is defensible or not is questionable. As Eric Goldman, associate professor of Law at Santa Clara School of Law and director of that school’s High Tech Law Institute, said in comments made about the case to Ars Technica, “we might otherwise excuse Roberts' firings through qualified immunity, or in fact maybe the budget cutting wasn't pretextual, but the judge's techno-confusion prevented it from reaching those questions squarely. This looks like an excellent case for an appeal.” If this case is appealed, rest assured that we will continue to cover it and all the implications this case will bring.