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Experts unlike ruling in Facebook speech case
Question of the Day
NORFOLK, VA. (AP) - The “like” button on Facebook seems like a relatively clear way to express your support for something, but a federal judge says that doesn’t mean clicking it is constitutionally protected speech.
Exactly what a “like” means _ if anything _ played a part in a case in Virginia involving six people who say Hampton Sheriff B.J. Roberts fired them for supporting an opponent in his 2009 re-election bid, which he won. The workers sued, saying their First Amendment rights were violated.
Roberts said some of the workers were let go because he wanted to replace them with sworn deputies while others were fired because of poor performance or his belief that their actions “hindered the harmony and efficiency of the office.”
While public employees are allowed to speak as citizens on matters of public concern, U.S. District Judge Raymond Jackson ruled that clicking the “like” button does not amount to expressive speech. In other words, it’s not the same as actually writing out a message and posting it on the site.
The case enters a murky legal area: Previous cases have dealt with postings on social networks such as Facebook, but there are no explicit words in this situation. Marcus Messner, a journalism and mass communications professor at Virginia Commonwealth University who specializes in social media, said it was likely the matter would have to be settled by a higher court.
James Shoemaker, an attorney for one of the fired workers, said he was surprised by Jackson’s April 24 opinion and order and would appeal it.
Jackson acknowledged that other courts have ruled that Facebook posts are constitutionally protected speech, but he said in those cases there were “actual statements.” Simply clicking a button is much different and doesn’t warrant First Amendment protection, he wrote.
However, First Amendment scholars said there isn’t much to infer: “Liking” a Facebook page is much like putting a bumper sticker on a car or wearing a button. One critic of the ruling is Eugene Volokh, a law professor at the University of California at Los Angeles, who critiqued the judge’s decision in a blog posting.
In an interview, Volokh said while a “like” could be ambiguous, there’s no question it counts as speech. A thumbs-up gesture is symbolic expression protected by the First Amendment, for instance, and “liking” something on Facebook is even more clearly expressive because it generates text on a computer screen, he said.
“It is conveying a message to others. It may just involve just a couple of mouse clicks, or maybe just one mouse click, but the point of that mouse click, a major point of that mouse click, is to inform others that you like whatever that means,” he said.
Roberts, the sheriff, doesn’t use Facebook but has acknowledged in court documents that he knew about Carter’s post. Carter said in court documents that Roberts was so angry about the Facebook postings that he thought he might actually punch him following a staff meeting where Carter and another fired worker’s Facebook post _ which was later deleted _ were mentioned.
In his ruling, the judge acknowledged the need to weigh whether the employee’s speech was a substantial factor in being fired. But the judge wrote that the point is moot if “liking” something isn’t constitutionally protected speech.
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