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Facebook says ‘Likes’ are free speech in sheriff case

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Facebook (s fb) is supporting the court appeal of a deputy sheriff who lost his job after he ‘Liked’ the Facebook campaign page of his boss’s rival. The case is helping to define the extent of free speech rights in the age of social media.

The Virginia man at center of the case, Daniel Ray Carter, clicked to “Like” the “Jim Adams for Hampton Sheriff” page in 2009. The incumbent sheriff learned of his subordinate’s “Like” for his opponent and fired Carter shortly after he won re-election.

Ordinarily, it is against the law to terminate employees for their political opinions. When Carter sued, however, a Virginia judge ruled in April that, unlike writing a message on Facebook, the act of clicking a “Like” did not amount to speech worthy of First Amendment protection.

Carter appealed the decision and this week Facebook filed to support him. In its brief, the social network says a “Like” is protected symbolic speech like a bumper sticker or a campaign lawn sign — both low-cost ways for citizens to express their political opinions.

The appeal will turn on the original judge’s conclusion that the “Like” was insignificant speech that did not involve “actual statements.” Facebook is countering this by pointing out that the “Like” appeared on Carter’s profile page and in the news feed of Carter’s friends. The evidence also showed that others in the sheriff’s office saw the “Like” and predicted that Carter would be “out of there” because of it.

Carter is likely to prevail. US courts have long protected a wide range of symbolic speech such as arm bands and flag burning. Recently, a federal judge expressed support for a vice-principal who was fired for having a symbolic hot dog cook-out in support of poorer students at the school.

Prominent First Amendment scholars like UCLA’s Eugene Volokh have also supported Carter’s position, saying a “Like” clearly is speech.

The Facebook Like case is just the latest in a series of decisions in which courts have struggled to apply Constitutional rights like free speech and privacy in the context of social media. In another high-profile case, Twitter is appealing a New York judges’ ruling that an Occupy Wall Street protestor has no constitutional rights in his tweets.

Update: The American Civil Liberties Union has also filed a brief to support Carter.

“The Supreme Court has made clear that the First Amendment protects everyone’s right to express their thoughts and opinions in whatever form they choose to do so, whether it’s speaking on a street corner, holding up a sign, or pressing a button on Facebook to say that you ‘Like’ something,” said ACLU attorney Aden Fine.

Here is Facebook’s brief in support of Likes as free speech:

Facebook 1st Amendment

(Image by Vince Clements via Shutterstock)

23 Responses to “Facebook says ‘Likes’ are free speech in sheriff case”

  1. Problem is, in the domestic terrorism that some call At-Will Employment, Free Speech does not protect you from being fired. In an at-will employment state, your employer can require you to waive ALL of your Constitutional Rights, without even notifying you. Consider the scores of people fired for having a yard sign supporting a candidate different from the one the boss likes. Look at Chick-Fil-A, who requires you to sign a statement that you will attend a Christian church every week. Look at the McDonalds supervisor in Milwaukee who fired a worker for refusing to invite him to a Superbowl Party.

    Government cannot take our rights away, but they’ve made sure that the corporations who own the government CAN.

  2. Kim Phillips

    I agree that a “like” is speech, but since when can a person not be fired for a political stand? In Tennessee, an employer can fire you for any reason or no reason, except in cases of discrimination as to race, religion, gender, ethnicity, or handicap. I was a rare liberal at a major financial institution and was intensely aware that, should I take an openly liberal stand, they’d find a reason for me to be gone. Perhaps the sheriff’s deputy is protected by union, but if not, he’s entitled to his “free” speech and can still be fired.

  3. Emma Kille

    Is Facebook saying right?For Mobile Device Management, The Mobile Worker, Enterprise Mobile Apps and Beyond,Mobility Management and the CIO, Mobile-to-Mobile search Enterprise Mobile Hub

  4. Anyone who gets involved with Facebook should have their head examined. And they all look pretty titty and babyish.

    Its like nursery school for uninteresting morons.

  5. Kalik K Crick

    This is got to be a joke right? I have on my Facebook page that I “like” both Mitt Romney and President Barack Obama, tells you something right? I do that because I want to get the last news from both candidates and to communicate with them.

  6. THIS is just ANOTHER point of PROOF that this government is trying to destroy FREE SPEECH and if we don’t stop it when situations as “mundane” and “trivial” in SOME PEOPLES opinions…happen, then when the very SERIOUS issues are brought into question, we will have NOTHING TO STAND ON and will FOREVER LOSE our rights to FREE SPEECH. I, for one WILL NEVER GIVE UP MY RIGHTS in ANY WAY, SHAPE, OR FORM, AND WILL DEFEND THE CONSTITUTION TO MY DYING BREATH.

  7. My primary issue with this isn’t that likes shouldn’t be free speech – it seems clear to me that they should. However, I know I have “liked” pages in order to be able to comment on them, even if they were actually pages for things I dislike. That’s something to keep in mind in these situations.

      • Facebook’s lack of regard for it’s users privacy rights, has and will continue to prevent it from achieving it’s potential. It is a great platform, but I no longer use it. I don’t want to always wonder where my posts have landed, who is viewing them and how they are using it to their advantage or my demise. Bottom line, it is like traveling to Mexico right now. I love the place, but the risk isn’t worth the reward. Facebook, in their quest to appeal to their advertisers, has lost sight of their customers. That stock still has a long way to fall!

      • But you need to relize that facebook is a private company and facebook is thier property. If you upload a photo, you no longer have rights to keep that photo private. So using a “like” as an endorsment without the users permission would work the same way. Their lack of privacy to it’s users is not fraudelent or illegal. But yes in my opion it does keep them from reaching their full potential. But Facebook will live and die with the credo of sharing information, not keeping it under wraps even in the best interest of thier users.