Facebook 'Likes' not protected as free speech, judge rules

In the social media era, most people likely consider their Facebook "Likes" to be the ultimate in free expression — a statement that says something fundamental about their values and tastes. But employers may not see it that way, and now  ZDNet reports that a judge has ruled that employees who are fired for liking something on Facebook have no legal remedy under the First Amendment.

U.S. District Judge Raymond Jackson issued the ruling in a case brought by six civilian employees of the Hampton, Va., sheriff's department. One of the plaintiffs, Daniel Ray Carter, was fired after he "liked" his boss' opponent on Facebook in a 2009 sheriff's election. He filed suit, claiming the firing was retaliation that violated his First Amendment right to freedom of expression.

The question at issue in the plaintiff's retaliation case was whether the act of clicking the "Like" button on Facebook represents enough of a substantive statement to merit free speech protection under the First Amendment. Jackson ruled that it does not.

"It is the court's conclusion that merely 'liking' a Facebook page is insufficient speech to merit constitutional protection," Jackson wrote in his ruling.

The larger issue, as Connor Simpson of the Atlantic Wire points out, could be whether a Facebook "Like" constitutes an endorsement. Many Facebook pages, Simpson writes, require a "Like" to access or post messages to Walls or Timelines. And, Simpson adds, "liking" a page is the only way to subscribe to it and ensure its updates appear in your News Feed.

Carter's case is not the only recent example of Facebook activity getting people in trouble at work. Mashable reports that Marine Corps Sgt. Gary Stein was given an "other-than-honorable" discharge last month after posting on the Armed Forces Tea Party's Facebook page that he would refuse to follow orders given by President Barack Obama.

About the Author

Donald White is an assistant managing editor with 1105 Government Information Group.

Reader Comments

Tue, May 8, 2012 SoutheastUS

I agree that it may go to the Supreme Court. I don't think this would change the outcome of this person's termination, though. I am a public employee, and only my family and a few close friends know my politics. I do not feel free to voice my opinion in print, on camera, or in any public forum where I am not anonymous either for or against any candidate, position, or proposed legislation. I accept these shackles of my free speech as a condition of employeement. Once I am "out of here", I feel I can then express my opinions on any of the above subjects as I see fit. Until then, "Viva anonymity!!!"

Tue, May 8, 2012 Steve

The judge got it wrong, they're not infalable. I don't know whether or not the employees' job is protected under freeedom of speech or not, but hitting the "like" button is clearly a form falling under the freedom of speech right. It's akin to printing something in a newspaper, this is just an electronic form of a local newspaper of sorts. The medium does not change the message and the message is protected under free speech, get a clue judge!

Tue, May 8, 2012

Free speech simply means you cannot be punished under the law of any government. Being fired from a job is not punishment under the law.

Tue, May 8, 2012 Paul

The solution is simple. Don't use Facebook. I don't and don't intend to ever use it. Of course, I also don't use twitter, nor do I use instant messaging, or instant communicator. I use e-mail, land line and Cell phones. If I receive a text message from anyone on my Cell phone, I simply delete it. As far as free speech goes, I do disagree with that judge, but, if you speak ill of your boss, you probably should be fired. There is an old addage that states: "If you work for a man, in heavens name work for him, speak well of him, support his position. If you do not, quit the job and then you may damn him to hell as much as you want." Obviously this was from a much earlier eral in our country's history. Now, also add woman to that adage and it still remains true.

Tue, May 8, 2012

A Supreme Court case in the making.

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