by Chris Crum
September 19, 2013 (TSR) – In the United States, Facebook likes are protected by the first amendment. Liking something on Facebook is the same as using your right to free speech to actually say, “I like this.”
That means that employers should think twice before firing employees over something they “like”. This is what we learned from a federal court ruling on Wednesday.
The case has been making its way through the legal system for over a year. It began when Deputy Sheriff Daniel Ray Carter of Hampton, Virginia liked the page of “Jim Adams for Hampton Sheriff.” Carter’s boss, Sheriff B.J. Roberts was running against Adams. Roberts saw the like, and eventually won the election against Adams. Carter was then fired. Carter claimed it was the Facebook like that led to his termination. He sued, but the judge ultimately determined that a like is not protected free speech.
Carter appealed the decision, and Facebook itself even came to his defense. Facebook had this to say in legal documentation last year:
When a Facebook User Likes a Page on Facebook, she engages in speech protected by the First Amendment…
The district court’s holding that“‘liking’ a Facebook page is insufficient speech to merit constitutional protection” because it does not “involve actual statements,” J.A. 1159, betrays a misunderstanding of the nature of the communication at issue and disregards well-settled Supreme Court and Fourth Circuit precedent. Liking a Facebook Page (or other website) is core speech: it is a statement that will be viewed by a small group of Facebook Friends or by a vast community of online users.
When Carter clicked the Like button on the Facebook Page entitled “Jim Adams for Hampton Sheriff,” the words “Jim Adams for Hampton Sheriff” and a photo of Adams appeared on Carter’s Facebook Profile in a list of Pages Carter had Liked, J.A. 570, 578 – the 21st-century equivalent of a front-yard campaign sign.
If Carter had stood on a street corner and announced, “I like Jim Adams 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
The ACLU also filed a brief saying:
With “one click of a button,” an Internet user can upload or view a video, donate money to a campaign, forward an email, sign a petition, send a pre-written letter to a politician, or do a myriad of other indisputably expressive activities. The ease of these actions does not negate their expressive nature. Indeed, under the district court’s reasoning, affixing a bumper sticker to your car, pinning a campaign pin to your shirt, or placing a sign on your lawn would be devoid of meaning absent further information, and therefore not entitled to constitutional protection because of the minimal effort these actions require. All of these acts are, of course, constitutionally protected…
That many people today choose to convey what they like or which political candidates they support by “Liking” a Web page rather than by writing the actual words, “I like this Web page” or “I like this candidate,” is immaterial. Whether someone presses a “Like” button to express those thoughts or presses the buttons on a keyboard to write out those words, the end result is the same: one is telling the world about one’s personal beliefs, interests, and opinions. That is exactly what the First Amendment protects, however that information is conveyed.
Fast forward to this week, and a federal judge overturned the decision, appearing to agree with the ACLU’s and Facebook’s reasoning. You can see the 81-page legal document here, but basically, what it comes down to is that pressing the like button to show that you like something on Facebook is no different than if you had actually typed the words “I like this.” You know, basic speech.
Oh, and in case you were wondering, employees using Facebook on company computers is not a federal crime.
Now, just because employees should be able to expect to be able to freely like whatever they want to on Facebook doesn’t mean that they can do whatever they want on Facebook and get away with it. Ask the Taco Bell employee that posted a photo of himself licking a stack of taco shells to Facebook earlier this year. When the photo went viral, he was fired.
I don’t see a court of law having any problem with that. Posting actual incriminating content on Facebook is obviously a great deal different than voicing your support of something via a Facebook like. You wouldn’t believe how often that happens, by the way.
There are other times when the lines are a little blurrier, such as when racism or other types of hateful content come into play.
Even Facebook’s views on freedom of expression are a little blurry at times. Take, for example, its many actions against any breast-related content. They once removed a photo of a woman’s elbow because it looked kind of like a breast.
Facebook has not discriminated in its anti-boob policies, even enforcing policies against breastfeeding mothers, nude art (even cartoons) and mastectomy photos. Even ads related to the boobie bird fell under the wrath of Facebook (though to be fair, the ad copy was kind of creepy).
Still, Facebook had taken heat earlier this year for its approach to content depicting, glorifying and trivializing violence against women. Some angry groups got together and make a very public issue out of it, and this led to Facebook making some changes, but some felt this was Facebook walking a fine line between enforcing community standards and stifling free speech.
One thing is for sure: you can learn a lot about a person from the things they like on Facebook.
Facebook likes can reveal a lot about a person. Aside from the obvious likes (pages that reflect lifestyle choices, political views, religious views, etc.), other seemingly innocuous likes can reveal more info about a person than one would think. That is according to a study we looked at earlier this year from the Psychometrics Centre at the University of Cambridge.
Facebook is obviously a treasure trove of data about people, and that includes data about employees. Employers can look and find all kinds of things they don’t like about their employees if they look hard enough, but when it comes to using that as grounds for firing, then they’ll do well to remember the federal court ruling.