Censorship

Using Facebook's Like button does not fall under 'protected speech'

A judge rules that Facebook's Like button is not "protected speech."

Well, just when you thought the legal ramifications of Facebook usage couldn't get more exhausting, here comes another bizarre twist.

Six employees say Sheriff B. J. Roberts of Hampton, VA, fired them for supporting an opponent in his 2009 re-election bid. The workers sued, saying their First Amendment rights were violated. One of the workers clicked Like on the opponent's Facebook page. Unfortunately, it's that guy's case that's hitting a speed bump. Because he didn't actually say anything.

Public employees are allowed to speak as citizens on matters of public concern, but Judge Raymond A. Jackson of Federal District Court ruled that clicking the Like button did not amount to protected speech because no words were involved. He wrote "Simply clicking a button is different and does not warrant First Amendment protection."

Clearly, I'm going to have to reconsider some of my favorite emoticons.

About

Toni Bowers is Managing Editor of TechRepublic and is the award-winning blogger of the Career Management blog. She has edited newsletters, books, and web sites pertaining to software, IT career, and IT management issues.

178 comments
lkuhlman
lkuhlman

Didn't a judge rule that burning of the American flag was protected under the First Amendment? So, if this judge has ruled that you have to actually SAY something to be protected, I want the next person who burns my flag to be arrested.

jaykayct
jaykayct

"I like" supports what is already said as if one said so oneself. The Judge is perhaps a sour old prune who no longer has the ability to think logically. He wouldn't be the first or last Judge to be guilty of not applying his mind, rather applying his frustrated emotions. A Judge is only human, but too many think they act on behalf of God. In South Africa this is particularly true.

kurt.moser
kurt.moser

The Constitution guarantees free speech, and protects citizens from legal action taken by the government in response to speech that the government doesn't like. Nobody has taken legal action against these six people. However, the government also prohibits discriminatory hiring and firing based on race, gender, etc, plus political affiliation. I'm with the guys who say "Let's see more details about the ruling". The job of sheriff is a political position, and may have the right to 'appointees' which can be appointed and dismissed at any time. A Republican sheriff may conflict with appointees who are Democrats, and will dismiss them. Same for a sheriff who is a Democrat. No appointee is guaranteed a job after the next election. As bad as it looks on the surface, it may be perfectly normal in any politcal season. But if these are not appointees who were dismissed, then it looks like discriminatory firing. But a 'like' button not being considered protected speech? Nonsense. The button represents an opinion held by the person pressing the button.

JCitizen
JCitizen

you cannot have a person you cannot trust watching your back on the street. Any police or military member can recognize that in an instant. This is why you DO NOT have free speech in the Army. When you sign the dotted line, to enlist, that is a given. We had a platoon in basic hold a meeting about a trainee who was going to be discharged for malingering; and the Captain - who was an MP and knew the UCMJ backwards and forwards - threatened to court martial the whole group and throw them out of the Army. You can't yell "fire", in a crowded theater, just for kicks either. I lump all that into the same box. Sheriffs officers in our community are fired all the time for supporting candidates who are running against the boss. It is just a chance you take, hoping the incumbent will loose. Incumbent wins - tough shit!

databaseben
databaseben

the "LIKE" button is no different than "Voting". And people can't be fired by the way they "Vote". Pretty sure the supreme court will agree as well.

PeaJay2011
PeaJay2011

In Buckley v. Valeo the U.S. Supreme Court has held that campaign donations are a protected form of free speech. Does this judge think that the corporations are writing love notes on those greenbacks? Maybe we need to see what *is* being written on the donations. There must be some rather serious UOMes the candidate needs to agree to. Do you suppose the candidate signs their name in in blood?

jloving1
jloving1

Judge Raymond A. Jackson is a moron. Where did he learn the constitution? From a correspondence course? People commenting on this before me have more elegant arguments, but let's break this down real simple like for Judge Raymond: Speech includes written words...the letters L I K E is a WORD. Just because you can press a single button to express that word, doesn't make it any less your speech. This judgement should be overturned before the end of the week. Toni, please update us what happens with this ruling.

Mr. Fix
Mr. Fix

If this ruling stands, the newspaper and publishing industries are on the block.

mikef12
mikef12

Money to politicians and politicians' support organizations (called bribes when occurring in other countries) are on the way to becoming the only recognized form of free speech. Too bad. I'm too old to see the this play out, but lots of you will probably witness the transformation of the US into an official Plutocracy.

P.F. Bruns
P.F. Bruns

I'll bet they'll be speaking now--for the opponent they supported. Let that cheeseball sheriff try doing something about that.

erickopecky
erickopecky

"Like" is a form of speech and should be protected. I can "Like" whatever I wan't and the government can't stop me. Neither can my boss. But he can fire me for publicly "Liking" something he doesn't approve of. "At will" means you can be fired for any reason except discrimination. It also means the Sheriff can be fired for being stupid. Voters can make that happen. Come on voters, isn't this the CHANGE you HOPE for.

cjreynolds
cjreynolds

I'll restate what has been stated in several posts here: Freedom of Speech protects us from being ARRESTED or PROSECUTED in a CRIMINAL COURT for expressing our opinions. Therefore, whether what the plaintiffs did was an expression of Free Speech or not, THEY WEREN'T PROSECUTED FOR A CRIME, and therefore their rights under the constitution were not violated. Was the Sheriff a JERK? HELLS YES! (as far as I'm concerned) Was the termination of the 6 employees fair? NO!!! (again, as far as I'm concerned) Does any of that make a difference? Unfortunately, no. In his case, there is no state or federal law that would require the sheriff to even GIVE A REASON for firing the employees - that's just how it works. In "open shop" states where very few workers' unions exist, the laws are quite lax about how and why employers can terminate their employees. I don't know how many times I have witnessed someone leaving the workplace after getting fired, and shouting "You'll hear from my lawyer!"... Never happens. They go to the employment commission or a lawyer and find out there's really nothing that can be done, regardless of the employer's reason for termination. Of course, notwithstanding race, gender, age and religion - If an employer is stupid enough to admit that you were fired for one of THOSE reasons, he's in deep doodoo - but unless he's dumb enough to admit it, it can be hard to prove...

premiertechnologist
premiertechnologist

Elected County officials routinely went around to their employees during election season, insisting that the employee contribute to the elected official's campaign fund -- and the contribution was not to be stingy either -- or else the employee could count on being fired. Civil Service just isn't what it used to be. But then, all civil service positions have been eliminated in the county, except for some of those in the Sheriff's Department.

webservant2003
webservant2003

That can be appealed easily. Over the years many things have enjoyed the protection of the first admendment which did not involve words such as flag burning, paintings and cartoons without words. It's called symbolic speech. I'm not a lawyer, but as a journalism instructor, I have to keep up with media law and there are several cases directly on point here. The judge is likely someone supporting the sherrif or else he is afraid one of his clerks will like his opponent.

byd_rbn
byd_rbn

So clicking a button does not use words, and therefore is not speech? Odd, because the Supreme court has decided that giving a candidate money (which might not involve any words) is protected as free speech. Onscreen buttons are not speech but dollar bills are.

blarman
blarman

This judge is going to get overturned on appeal. There is no question that neither the State nor Constitutional laws regarding free speech can be interpreted by any reasonable person to mean what the judge is trying to pass off. This has got to be political quid pro quo. My only question is: how did a judge this stupid get to be a lawyer in the first place?

Big B
Big B

Judges stopped administering justice a long time ago. If he truly believes his actions were just and true then he has failed to understand what justice is. I can tell you this, any decent thinking man will know that he is either corrupt or he made a stupid judgement. Which is it judge? Are you corrupt or did your brain shut down that day?

rle11wb
rle11wb

Funny, last time I checked, communicating "LIKE" is sending a message. The fact that it is electronic is already covered. Its not just a "button" - its sending a specific message. This judge is wrong and he needs a huge slapdown.

Ludwig817
Ludwig817

I "Like" Dr_Zinj's opinion ...

Greybeard770
Greybeard770

By his definition, carrying a sign would be the same thing as clicking Like since nothing is spoken.

sperry532
sperry532

And there WILL be an appeal. Count on it.

rmwade
rmwade

I seem to remember back when people starting wearing the flag on the seats of their pants and people protested only to be told that it was a free speech issue (the same with flying flags). How is using a shortcut for the words "I like this" not a free speech issue?

zoso967
zoso967

Aren't those words? Facebook just made it easier to say it ... Judge Raymond A. Jackson of Federal District Court is a moron and obviously lying if he says he does not believe this is protected speech. Hell, just type "I like this" instead ... jeez what an idiot!

Joe Cement Mason
Joe Cement Mason

And yet the conservative members of the U.S. Supreme Court, in support of their corporate friends and lobbyists, have ruled that financial contributions by corporations are a protected form of "free speech", even though the contributions did not speak. Of course, we all know that money talks.

JP-470
JP-470

This case is headed for a do-over and a reversal: this judge doesn't know what a word is: last I knew "like" IS a word.

JEfromCanada
JEfromCanada

You can't have it both ways. If clicking a button does not qualify as speech, then I see no justification for the Sheriff acting upon the "non-statement". And the courts are wrong anyway. In the digital age, there are already precedents for "signing" digitally simply by clicking. It is commonplace to "Agree" to terms of service simply by clicking. Does this mean that people who "Agree" to a service will be able to go to court and tell the judge "I didn't SAY I agreed to anything?" As far as I'm concerned, when presented with two clear choices (Like, Don't Like), a person who "chooses" a specific answer has indicated an opinion. If "Free Speech" also applies to written communication, then clicking on a button containing writing should be interpreted as speech. I'm so glad I live in Canada!

Becca Alice
Becca Alice

While there may be some disagreement on the specific use of Like, in most cases it is an indicator of approval of the sentiment in a post. And it sounds like that would be well covered under "and publish his sentiments."

JBrown10
JBrown10

but a public action that expresses a political opinion is not? Right and corporations are citizens - all the rights and no responsibilities. And as corporations gain, people put on the uniform and die to only find out they have no rights and all the responsibilities. What is it with the courts and all these insane rulings? Money is not speech, corporations are not citizens/people, and any expression in support or opposition to a political candidate is free speech.

Greg.Wallace
Greg.Wallace

I have read about this case and I can't say I have all of the details; however, being fired for my political beliefs is just wrong.

VirtualPro
VirtualPro

How about I create a web page with buttons to say more than "like" or "unlike"? How about a button (with actual name) "I know John Doe is a theif, racist and murderer." If I say it ??? it???s slander. If I just push the button its ok? How about drop down boxes? Select from the list that best ansers what you know about John Doe.

rgeiken
rgeiken

Hopefully this decision will be overturned by a higher court. If it is not considered speech, how could the sheriff use it in a decision to fire an employee. Clicking on that button should be considered implied free speech. I think that this country has too many Judges that don't follow the Constitution.

libertyboi
libertyboi

How to explain such a clearly ridiculous ruling? Because career politicians and bureaucrats (who consider themselves, incorrectly, The Government) are terrified of the Internet and its ramifications. They see it as a zero-sum-game, that empowering people with access to information and low-cost, large-scale means of communication will diminish their power.And in the traditional sense, they are correct. So do not underestimate the means to which they will resort to cling to their old power model. (see Mubarak, Assad, et al)

john.muskopf
john.muskopf

there is something really wrong with this. oh yeah, I forgot that money "talks" and buttons just get pushed around. so the 99% are just buttons then.

macmanjim
macmanjim

If giving the finger is speech, so is hitting the like button. This will be overturned.

John_LI_IT_Guy
John_LI_IT_Guy

Having been to jury duty I find that some judges suffer from a God complex in the way they treat people, witnesses, lawyers, plaintiffs, jurors, and defendants. GET OVER IT YOU ARE NOT GOD!!! You are a lawyer with a robe!!!

MarkW
MarkW

I can't imagine this surviving. The Supreme Court has already ruled that financial contributions are equivalent to speech. And those contain no words either.

efeist
efeist

I could NOT possibly agree more strongly!

efeist
efeist

I could possibly agree more strongly. Well written!

ec_rod
ec_rod

The Judge was just trying to show off that he is computer literate and seemed to have an "aha!" moment. Unfortunately, the button had a "like" symbol, and LIKE is a word! Clicking on that button was just an efficient way of expressing and idea that's encapsulated in a word.

vhoran
vhoran

I would guess that this lawsuit is far from over. Look out appeals court, here we come!

4liberty
4liberty

One could then say, from the reading of this judge's ruling, that voting is not a protected right. All you are doing is pushing a button, to "like" one person over others.

tavent
tavent

when you can be fired for expressing a view that is guaranteed under the US Constitution, on your own time, in cyberspace, that is a clear and obvious attack on your rights. A judge who did not hide behind the door during US history courses in Junior high school, would have a grasp of that. And obviously part of the problem is that Virginia apparently passed a vacuous "At Will" law, which lets employers basically fire employees for trivial reasons. And then there is the facet of BJ being a Sherriff; these are public servant employees. Where is their union, while they are being fired without justifiable cause?

dl_wraith
dl_wraith

Pretty much a great illustration of what I meant earlier. Laws can protect your right to the act itself but will struggle to account for all the consequences such an act may bring. Or, to recap, engage brain before internet.

cjreynolds
cjreynolds

Right there! The crux of the whole matter!

OH Smeg
OH Smeg

The judge made a ruling on evidence presented before the court not specifically on anything else. Here it Depends on what was presented before the court as to how that decision should be Interpreted. Where the judge may of made a mistake in Law it's very unlikely that he was specifically asked to Rule on if Clicking on a Face Book Like Button was or was not Free Speech. Much more likely he was asked to rule on something completely different and the simple Headline presented here is misrepresenting the Ruling. Col

hippiekarl
hippiekarl

Shoulda inferred the ramifications before posting here.... ;)

dl_wraith
dl_wraith

.....according to the ruling it would still get you fired, right? :) Oh, and now that you've typed that, it's libel. ;) *Softly chuckling to himself about all the abusive buttons the Internet COULD be filled with if the ruling had gone the other way*

showbizk
showbizk

Careful, vhoran, you'll be charged with a hate crime, or at least bullying. ;)

dl_wraith
dl_wraith

I say fair rights for the downtrodden skinny male vocalists! It's time these 'substantial ladies' moved aside and let those with less girth and femininity to bask in the limelight. :)