Are Your Facebook Likes Free Speech?

Facebook has joined the ACLU in arguing that users’ likes on the social networking site should be a protected form of free speech. In separate filings with the Fourth Circuit Court of Appeals in Richmond, Va., lawyers argued that a ruling that refused to provide protections to those who like something on Facebook was wrong.

Fired Over a Facebook Like

The case stems from the firing of several employees in the Hampton, Va., sheriff’s office after local elections in 2009. Two of those employees — Daniel Carter and Robert McCoy — were known to have liked the Facebook page of Sheriff B.J. Roberts’ opponent. Following Roberts’ win, they were allegedly fired for their actions.

Carter and McCoy took their case to U.S. District Court in Virginia. However, Judge Raymond A. Jackson ruled in Roberts’ favor, saying Facebook ‘Likes’ aren’t enough speech to warrant constitutional protection.

“In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record,” Jackson ruled. Likes do not, he continued. Facebook and the ACLU disagree, and have come to Carter and McCoy’s aid in an appeal.

The Case for Free Speech

Both see the ruling as limiting free speech, and worry that users’ Facebook likes can be used against them. “Liking a Facebook Page is speech: it generates verbal statements and communicative imagery … as well as similar statements and imagery in the News Feeds of the User’s Friends,” Facebook argued in its filing.

The ACLU shared in Facebook’s definition of “liking.” “Liking something on Facebook expresses a clear message — one recognized by millions of Facebook users and non-Facebook users — and is both pure speech and symbolic expression that warrants constitutional protection,” the organization wrote in a separate filing.

Their message is this: Judge Jackson’s ruling means our likes can be used against us, just because we aren’t physically saying it, when at the same time other content on Facebook is already protected as free speech thanks to previous rulings.

The Case Against Free Speech

Facebook and the ACLU may be right in arguing that liking something on the site is a form of expression that should be protected like actual speech. However, there is also an employment issue at stake. Yes, sheriffs are political figures, and politics could play a part employee firings, but let’s take that issue out.

Let’s imagine this was a police officer. Is it appropriate for that officer to claim freedom of speech rights to like a page supporting drug legalization when he or she is sworn to prosecute those who possess illegal drugs? Freedom of speech does have limits.

Supervisors can and should expect a certain amount of loyalty from their employees. Jackson mentioned that in his original opinion, saying previous rulings have “held that political allegiance to the sheriff was a lawful job requirement” for employment.

Carter and McCoy’s actions could be considered insubordination, which is a fireable offense at any job. The only gray area here is the political aspect of it all, which is protected free speech.

Watch What You Say and Do on Facebook

Nobody knows how this case will end up, but Facebook users should be smart when they’re liking and commenting on content on the site, and take into account who can see that content.

Employees have protection barring the use of Facebook for hiring and firing decisions in Illinois and Maryland. Other places including Washington, Delaware and New Jersey, are considering similar laws, but they have yet to become law.

Carter and McCoy’s biggest mistake was failing to lock down their Facebook profiles, which allowed their employer to find out their actions. The appeals court must now decide if this is an issue of workplace protocol, or actual free speech.

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