If a federal judge’s ruling last month in a Virginia case holds up, you might want to be careful of what you “like” on Facebook. Clicking the little blue button does not count as speech protected by the First Amendment to the U.S. Constitution, Judge Raymond A. Jackson said of the six former employees of the Hampton, Va. sheriff’s office who claim they were fired for hitting the “like” button on the Facebook page of their boss’ opponent in a 2009 election.
The workers say Sheriff B.J. Roberts fired them after learning they put their digital stamp of approval on his campaign opponent, but Jackson ruled that simply “liking” a message is not equivalent to expressive speech, the Associated Press reported:
Judge Jackson acknowledged that other courts have ruled that Facebook posts are constitutionally protected speech, but he said those cases involved “actual statements.” Simply clicking a button is different and does not warrant First Amendment protection, he wrote.
Jackson’s ruling was first reported April 28 by the technology policy website Arstechica.com.
Roberts’ attorneys said that the former employees were removed because they “hindered the harmony and efficiency” of his sheriff’s office. The AP also reported that Roberts himself is not on Facebook, though he was aware of his then-employees’ use of the “like” button.”
But Eugene Volokh, a law professor at the University of California, Los Angeles who is also a frequent libertarian commenter, told the AP there is “no question” the “like” button should count as free and protected speech. “It is conveying a message to others,” he told the AP.
This is hardly the first instance of Facebook use costing people their livelihoods. And Jackson’s goes against a trend emerging in some state legislatures introducing measures that aim to secure Facebook users’ privacy from their employers or potential employers. The Maryland statehouse recently passed legislation preventing businesses from demanding access to the social-media accounts of prospective hires. The bill, however, would not prevent access to publicly accessible Facebook and Twitter pages.
