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
Isolated incident?
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.
Varying Views
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.”
http://www.washingtonpost.com/opinions/is-facebook-speech-protected/2012/08/10/13155ac6-e309-11e1-ae7f-d2a13e249eb2_story.html
Facebook amicus brief
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.”
Conventional wisdom
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.
You might also like (no pun intended):
Social Media: Will the Bubble Burst?
Is “Liking” on Facebook protected free speech?
Defining Work-Life Balance in a Digital/Mobile World
DBG
*** All views and opinions expressed are those of the author only.
The implications of this case are very interesting. And the simile comparing the like button to a campaign yard sign seems appropriate.
This information (Facebook likes), of course, is re-purposed in many other ways: what ads we see, what stories populate our news feed and therefore impacts our engagement with the world. To me, that makes it as impactful a statement as verbally stating your beliefs on a street corner.
I recently commented on a Yahoo news story comment. I am an editor. I was pointing out an egregious grammatical error and saying that the inability to write English would cause me to question his intelligence and, therefore, his political views. Short story, the comment identified me as an employee of a government agency and gave my title. Without telling me, the site had hijacked my Facebook information and made it REALLY public. Never, anywhere on the Internet, never identify yourself as a government employye.
Wow, Regina, that’s the first I’ve heard of this type of situation. What was the article about and who wrote it? Was it a news story or an op/ed? Regardless, this certainly sounds like unethical online behavior which Yahoo’s editors should have blocked out. Also, remember that nothing one posts online or includes in a Facebook profile is ever completely private.
Look at the bright side, a least you don’t work undercover for the CIA (I assume). If so, your situation would be similar to the Valerie Plame incident — and we all know how that turned out.
Nonetheless, I think public servants should take pride in their work for the American people. However, if you’re writing or commenting on a personal level in a public forum — not in you’re official govt capacity — then that should be made clear, and be respected.
I would consider contacting a Yahoo news editor or other appropriate official to complain about any online media practice you deem unprofessional and/or unethical. Otherwise, this may happen to others.
Hopefully, this was just an isolated incident.
Jessica:
Excellent comments! You really hit the nail on the head. Thanks for your valuable feedback on this important issue.
Government employees depending on their position give up some elements of free speech. In particular, partisan activities such as fundraising or campaigning for individuals may be limited. Generally these limits are to protect government employees from pressure by incumbents. Could the sherriff deputy place or be asked to place by the sherriff a campaign bumpersticker on his government vehicle? Or wear a campaign button to work?
Great points, David. There may be some legal gray area here, which I will not attempt to tackle. I’ll leave that for judges, attorneys and constitutional law experts, etc. However, it will be interesting to see how the caselaw develops and whether legal precedents apply to our brave new world of online/digital/mobile information technology.
Thus, based upon your comments, perhaps this type of case is not as cut-and-dry as it may first appear on the surface? That’s why I urge readers to be vigilant and not take online free speech rights for granted — lest we risk losing some of them, perhaps.
I can’t wait to see how the appeals court rules in this case, and if the subsequent the appellate decision is further appealed to the Supreme Court. If so, it will likewise be of major interest whether the high court decides to hear the case — or similar ones on appeal, if applicable — and what the final outcome will be.
Stay tuned…
Thanks again for your insightful comments, David — which are very much appreciated!
I interpret a “Like” more as an acknowledgement of something I want in my newsfeed. I might have competitor information “liked” to stay up with content outside my business area. It might be easy if Facebook had a “maybe I like them, maybe I don’t” option.
Thanks for the interesting observation, Nate. I like your idea of a “maybe like” button. Reminds me of that pop culture song that Millennials can’t get enough of, “Call me maybe”. The women’s Olympic swim team did a video to the song which received nearly 8 million views on YouTube. Perhaps you saw it? http://www.youtube.com/watch?v=YPIA7mpm1wU
Remember folks, we cannot and should not take online free speech rights for granted in the 21st century age of info technology innovation. Legal opinions by the U.S. Judiciary and constitutional scholars are still being formulated and evolving.
Sometimes, we may not appreciate such fundamental freedoms until they are lost. Just ask dissidents in China, Iran and other countries with authoritative regimes that block and restrict their people’s use of the Internet, or even jailed citizens for voicing their personal opinions when such speech is critical of government.
While I’m not saying this will be the case here, we should all nonetheless remain attentive and vigilant regarding online free speech rights and constitutional protections.
News update from CNN via local TV affiliate:
http://www.ktvq.com/news/virginia-deputy-fights-his-firing-over-a-facebook-like-/
ACLU amicus brief:
http://www.aclu.org/blog/free-speech-technology-and-liberty/aclu-facebook-tell-appeals-court-free-speech
This is a great discussion and a lot of good comments made. I have enjoyed reading this. Thank you all.
Thanks so much for the kind words, Lisa. This has certainly been an interesting and enlightening discussion.
No citzenship on the planet can have the fundamental freedoms we enjoy in America without also having legally protected free speech rights at the foundation of a functional democracy.
Can you share any personal views on this topic? What’s your opinion regarding the district judge’s ruling and potential outcomes on appeal?
Thanks again, Lisa, your feedback is most appreciated.
“Like” may mean different things to different people, and even different things to the same person at different times or in different contexts. The key issue in this case is simple: the “Like” had a political context. Political speech is the speech the First Amendment most intended to protect, and is due the greatest protection. No matter what “Like” means in any given instance (even just “I’d like to know more”), when applied to a contested election ANY statement or sentiment is protected speech.
Responding to Regina back on Aug 20: That’s why you need to make sure that:
1. Your Facebook privacy settings are set to never share information with partner websites.
2. You NEVER use Facebook (or any other social site) to log into any OTHER site. Many sites nominally “make registering easy” by allowing people to register and sign in using their Facebook, Google, Yahoo, or other credentials, but what that REALLY does is give the site you’re using and Facebook (or Yahoo or Google) permission to exchange information about you, track your usage across the two sites, and perhaps use your information in ads on Facebook for the other site.
Not only that, I took off the information.
@Randy. I sure do. Both points 1 & 2. I have many accounts under different names. And when I answer on any blog, news story, I NEVER use my FB account. If FB is the only way to log in, I don’t read that site, period. I got a finger-wag on our agency installation FB for asking why I couldn’t open a story about our servicemen and women receiving some type of accolade. I was told right there on the page in front of God and everyone that I needed to read the rules of using social media on government computers during working hours. (It was my lunch hour). I can read book or a newspaper. You GovLoopers are so lucky, you can identify who you “really” are, stream music through your computers at work, BYOD, download whatever you want, choose your internet browsing system at will. I totally avoid any political talk on my personal FB page. It keeps me out of trouble. 🙂
David, responding to your question asking me what I thought of the article. I feel the deputy is right to fight his firing, but also he should have exercised more caution in his social media posts as well. I am a huge person for 1st Amendment rights, whether I agree with you or not, but in a City or Town of small to medium size, you need to also know that things are going to get around. That does not mean that you should stop expressing your personal beliefs but exercise caution. This comes from my personal experience.
Before coming to govt., I had my own successful company, and was a prominent person on my local chamber of commerce board of directors and sat on a couple of non-profit boards. I was vehemently opposed to my local county’s proposed landfill expansion and was very vocal about it on my personal facebook page. While I made no mention of it at all on my business side and was super professional, I lost some clients who happen to be friends of some of the County board officials supporting this expansion and they were big contracts. That is why, on my twitter feed and my FB, I put the views expressed are my own. But I am still careful what I like or put on there.I think you have to be aware of the repercussions of your own actions as well. I don’t think the deputy should have been fired over just liking the opponent. However, if he said the sheriff was an incompetent boob, that is another story.
With that being said, I too am cautious of using Facebook or Yahoo to sign in.I will set up a separate id. My boss is ok with us looking at FB at our desk on lunch hour and her philosophy is if you get your work done, I don’t give a sh&#. (her words). For security, we can’t stream music, but I can play Pandora. Also when I am at work, I don’t engage in discussions on FB. I do that in my free time.
Good discussion!
LISA: thanks for the excellent comments. I agree that one must use keen discretion in social media activity. At the same time, however, one never knows who — or how many people — may be offended by whatever. Thus, it can be a fine line to walk. Regarding the deputy sheriff in the case, the “Like” was one of multiple alleged reasons for his termination. Regarding bosses, yours sounds like a good one. Results-only is one of my mantras! Thanks again your sharing your experience.
RANDY: I “Like” your analysis — pun intended. Even though political speech is protected, the deputy sheriff may be guilty of bad office politics. It’s generally not the best idea for an employee to inflame a manager/supervisor, unless the goal is creating an adversarial work situation (at least in my opinion). You and REGINA give awesome advice regarding Facebook privacy settings and shared sites. More people need to pay more attention to the realities you deftly pointesd out.
David, I realize that the “Like” was just one of alleged multiple reasons for the deputy getting fired, but let’s be real, the Sheriff was probably pretty pissed when he saw the like for his opponent and took the opportunity to use his power to clean house when re-elected. I’ve seen it locally with State’s Attorney, Mayoral, and Aldermanic races. The sheriff used an age old tactic. Having formerly lived in Chicago for many years, I saw it happen all the time. This is a good case to discuss from both a free speech and work place etiquette standpoint.
Thanks for the clarification, Lisa — and the additional awesome points.
To use a cooking analogy, what do you get when you mix the following ingredients in a simmering stove pot?
Free Speech
Social Media
Office Politics & Etiquette
I’m no chef or culinary expert, but that may be a recipe for a spicey dish!