Tuesday, May 1, 2012

Federal Court Says Facebook 'Like' Not Like Protected Speech

Image representing Facebook as depicted in Cru...
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A black armband, a burning cross and a torched American flag are among numerous examples of "speech" that the U. S. Supreme Court has characterized as worthy of First Amendment protection. So-called "symbolic speech" cases involve conduct through which the actor intends to convey a specific message and the audience reasonably understands the intended message.

The concept is familiar to media law students, but apparently is lost on United States District Court for the Eastern District of Virginia Judge Raymond Jackson, who last week ruled in Bland v. Roberts (2012 U.S. Dist. Lexis 57530, 4:11cv 45 E.D. Va.; Apr. 24, 2012) that social media users who press Facebook's thumbs-up "Like" icon are not engaged in First Amendment protected speech.

As reported by the Websites Arstechnical.com, Citmedialaw.org and elsewhere, the case involved six civilian Hampton County Sheriff's office employees who, unenamored of incumbent B.J. Roberts, attended cookouts, posted bumper stickers, and of greater relevance here, pressed the "Like" button on the Facebook page of challenger Jim Adams. Roberts won the election and terminated the six employees, citing budgetary constraints, but the workers shown the door claimed their protected First Amendment rights of speech and association were violated.

In allowing Roberts' summary judgment motion, Judge Jackson ruled: "Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection." Beyond conceding Sheriff Roberts being aware that some of his staffers appeared on his challenger's Facebook page, the court refused to "infer the actual content of [plaintiff's] posts from one click of a button on Adams's Facebook page." Moreover, Judge Jackson cited the lack of evidence that Roberts knew about the bumper stickers, cookout attendance or other actions by the fired workers in support of Adams's campaign.

In the not-so-humble opinion of the "TUOL" staff, Judge Jackson's ruling is ripe for appeal. Clicking on the virtual famous Facebook thumb is a shorthand (no pun intended) way of saying to your million close Facebook friends: "I like Jim Adams and hope he wrests that Sheriff's badge from B.J. Roberts." Endorsing a candidate as protected First Amendment activity is a Westlaw query bound to yield oodles of established case law in its results.

Yes, Virginia, besides Santa Claus, there is also a Free Speech Clause.

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