Clicking ‘Like’ on Facebook not protected speech according to federal judge


 

Clicking the “Like” button on Facebook does not qualify for First Amendment protection, a United States District Court judge ruled, dismissing claims that a Virginia sheriff improperly monitored the virtual support of several now former employees.

As the November election approached in 2009, Sheriff B.J. Roberts, of Hampton, Va., learned that six of his employees were actively supporting retired chief deputy Jim Adams for sheriff. These employees had expressed their support for Adams by clicking “Like” on his campaign Facebook page and by attending a barbeque fundraiser on his behalf.

Following a successful re-election bid, Roberts fired several employees, including three uniformed deputies and three civilian workers who supported Adams.

Bobby Bland, Daniel Carter, David Dixon, Robert McCoy, John Sandhofer and Debra Woodward sued Roberts in the Eastern District of Virginia for violating their First Amendment rights.

According to the complaint filed in U.S. District Court, Roberts allegedly called an agency meeting in which he advised sheriff’s office staff to get on the “long train” with him, rather than ride the “short train” with Adams.

In a motion for summary judgment against the complaint, Roberts countered that some of the employees were fired because of their poor work performance or because he wanted to replace them with sworn deputies. The uniformed deputies were terminated because their actions “hindered the harmony and efficiency of the office.”

In his order, U.S. District Judge Raymond Jackson ruled that “liking” a Facebook page does not qualify as protected speech. While public employees are typically allowed to speak as citizens on matters of public concern, simply clicking the “Like” button did not constitute free and expressive speech.

“The sheriff’s knowledge of the posts only becomes relevant if the court finds the activity of liking a Facebook page to be constitutionally protected,” Jackson wrote in his opinion. “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 in the record.”

The legal matter enters a vaguely interpreted area of the law as previous cases have dealt with actual written postings on social networks such as Facebook and not the mouse click of a “Like” button.

Nationally recognized constitutional attorney and law professor Bruce Rogow disagreed with Jackson’s ruling.

“A communicative act is a form of free speech and while clicking ‘like’ on Facebook is a minimal act, it is a form of communication thus protected under the First Amendment,” Rogow advised. “Although simply a mouse click, you are clearly conveying a message of support to others.”

But in his ruling, Judge Jackson added, “Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’ Facebook page.”

Jackson also ruled that Roberts is entitled to qualified immunity, even if the plaintiffs had posted written statements supporting Adams on Facebook.

“In a case where the plaintiffs have asked the court itself to engage in extensive guesswork, an objectively reasonable official in the sheriff’s position cannot be expected to engage in that same calculus,” he said. “A balancing which has been difficult for multiple courts to engage is difficult more so for a sheriff attempting to ensure his actions do not impede upon the constitutional rights of his employees.”

“Taking the facts in the light more favorable to the plaintiffs, Sheriff Roberts is entitled to qualified immunity,” the court concluded.

Roberts, a law enforcement professional with over four decades experience, was unavailable for comment when contacted.

“By going to a candidate’s Facebook page and liking it, you are making a political statement,” concluded Rogow. “This is a form of protected speech.”

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