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Is ‘liking’ something on Facebook Protected Free Speech?

Social Media in the Workplace

The issue of what is protected free speech when social media is used to express one’s opinion just got more complicated. It was reported in the Washington Post on August 8 that Daniel Ray Carter Jr. had logged on to Facebook and did what millions do each day: He 'like''liked' a page by clicking the site’s thumbs up icon. The problem was that the page was for a candidate who was challenging his boss, the sheriff of Hampton, Va.

That simple mouse click, Carter says, caused the sheriff to fire him from his job as a deputy and put him at the center of an emerging First Amendment debate over the ubiquitous digital seal of approval: Is liking something on Facebook protected free speech?

Carter filed a lawsuit claiming that his First Amendment rights had been violated, and his case has reached the U.S. Court of Appeals for the 4th Circuit. Last week, Facebook and the ACLU filed briefs supporting what they say is Carter’s constitutional right to express his opinion, signaling the case’s potentially precedent-setting nature.

The interest was sparked by a lower court’s ruling that “liking” a page does not warrant protection because it does not involve “actual statements.” If the ruling is upheld, the ACLU and others worry, a host of Web-based, mouse-click actions, such as re-tweeting (hitting a button to post someone else’s tweet on your Twitter account), won’t be protected as free speech.

Is pressing a ‘like’ button analogous to other forms of speech, such as putting a bumper sticker on your car with a candidate’s name on it?”

Facebook’s like button appears next to many different types of content on the site, from photos of a friend’s kids to an organization’s page to news articles. When someone clicks the button, an announcement is posted on his or her profile saying that the user likes that piece of content. The like is usually displayed to the user’s Facebook friends as well. Facebook says more than 3 billion likes and comments are registered every day.

In the lower court ruling, U.S. District Judge Raymond A. Jackson issued a summary judgment against Carter and the other plaintiffs in January. In his explanation of the ruling on Carter’s claims, he dismissed the argument that a Facebook like is constitutionally protected speech.

“Merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” Jackson wrote. “In cases where courts have found that constitutional protections extended to Facebook posts, actual statements existed within the record.”

Facebook took issue with the decision, saying in its filings that likes are the “21st-century equivalent of a front-yard campaign sign.”

Jackson’s decision has also drawn criticism from some legal experts. Eugene Volokh, a law professor at the University of California at Los Angeles, said firing government employees for speaking out about matters of public concern is generally unconstitutional.

He said there are some exceptions, such as when a high-ranking employee’s political affiliations are relevant to the job, or if the speech greatly disrupts the workplace or diminishes public confidence in the government agency.

Volokh thinks Jackson upset a precedent with deep roots in U.S. law. He said he thinks the 4th Circuit will probably overturn the district judge’s ruling — but if it does not, it would be a significant moment.

“If the 4th Circuit agrees with the judge — that liking is not protected speech — that would suggest an overturning of precedents,” Volokh said. “It would be interesting to see what the Supreme Court would do with that decision.”

The like controversy is just one of many thorny issues surrounding social media in the workplace. In April, the Marine Corps said it would discharge a sergeant who criticized President Obama on his Facebook page — including allegedly putting the president’s face on a poster for the movie “Jackass.” And last fall, the National Labor Relations Board ruled that a New York nonprofit illegally fired five workers who criticized a colleague on the site. The board said it had seen the number of cases involving social media skyrocket from zero to more than 100 over five years.

There is no question that the law has not yet caught up with today’s new technology and the use of social media to express one’s opinion. From my perspective the more important question is whether Carter clicked the like button while at work. If he did, then he committed an ethical offense in that an employee should not be using social media in the workplace for personal purposes and he should be held accountable for his actions. To me it is no different than using a workplace computer to update one’s Facebook page while at work. However, if he expressed his opinion while at home, then I see nothing wrong with it from an ethical perspective. One could say he acted in a responsible manner by realizing clicking the like button is a personal statement and has no business in the workplace especially in a government setting.

This case illustrates the notion of ethical legalism that something is ethical as long as it is legal. Nothing could be further from the truth. Ethical people often go beyond the law’s minimum requirements. The law doesn’t cover every situation we encounter in our lives. We should strive to live our lives in accordance with core values such as honesty, trustworthiness, respect, responsibility, and accountability so that when a law is unclear, we should turn to these values for guidance.

Blog posted by Steven Mintz, aka Ethics Sage, on August 15, 2012