ASKED & ANSWERED: Kyle Langvardt on free speech and election law

By Steve Thorpe

Legal News

Six employees in Virginia were fired by Sheriff B.J. Roberts after they supported his re-election opponent in 2009. One of those workers, Daniel Ray Carter, had "liked" the Facebook page of Roberts' opponent. Free-speech advocates including the American Civil Liberties Union argue that the "like" should have been protected by Carter's right to freedom of speech. But U.S. District Court Judge Judge Raymond A. Jackson in Virginia ruled differently saying, in effect, that free-speech protections don't kick in when someone doesn't actually speak or write something. Kyle Langvardt joins the University of Detroit Mercy School of Law faculty starting this fall. He most recently was a lecturer in Business Law and Ethics at Indiana University, Bloomington. Prior to that he was an associate with Locke, Lord, Bissell & Liddell in Chicago. Langvardt's research interests include free speech and election law.

Thorpe: When Judge Jackson ruled against the workers in April, he said that "liking" a Facebook page didn't merit constitutional protection. "In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record," Raymond wrote. In your opinion, what are the legal strengths and weaknesses of that view?

Langvardt: Judge Jackson's poor word choice has led people to read a much broader and dumber holding into the case than I think he intended. All the press I've seen on the case reads Jackson as holding that "liking" a Facebook page is never protected speech for any purpose at all. But it's hard to believe that a federal district court judge would intend a rule that is so obviously ridiculous.

A narrower reading makes a lot more sense. Judge Jackson didn't mean to say that "likes" are completely unprotected. Instead, he said that it was difficult to tell under these facts whether Carter's "like" expressed a personal grievance with Roberts or a political one. The distinction matters in this case because the speech of government employees is only protected from retaliation when it addresses a public concern. I'll address both of these interpretations in turn.

Interpretation 1: "Liking" is not speech for any purpose.

It's implausible that Jackson would hold that "likes" are generally unprotected as speech. Everybody knows First Amendment protection reaches beyond words. Think about Tinker v. Des Moines Independent Community School District, in which students wore black armbands to school to protest the Vietnam War. The armbands' status as symbolic speech was taken for granted. And so on -- abstract art, flag burning, nude dancing and on down the line all receive at least some modicum of protection.

Moreover, it's not clear that the "like" button is merely symbolic speech, because when you "like" something on Facebook, Facebook actually goes and transmits the words "so-and-so likes this" to hundreds or thousands of people. It's just a question of who types it out. So, again, it's improbable that Jackson would find the "like" button insufficiently wordy or detailed to qualify as speech.

Interpretation 2: When you "like" your boss's opponent's Facebook page, you're at least as likely to be expressing a personal gripe as voicing a public concern.

There were six plaintiffs in this case, all of whom raised First Amendment retaliation claims. Jackson's discussion of Carter's "like" button claim makes a lot more sense when you consider it alongside his discussion of these other claims. One plaintiff, David Dixon, is said to have exited the voting booth with some Roberts campaign literature and told somebody that "you can take this (expletives) and throw it in the trash can." Judge Jackson held that Dixon's statement was unprotected -- in the retaliatory discharge context, at least, which requires a public concern -- because it appeared to touch a personal grievance rather than a political one. But that doesn't imply at all that Dixon's remarks were somehow not First Amendment speech.

Same story in Carter's case. Because "liking" the page of Roberts' opponent may well have meant simply "I hate my boss," Judge Jackson held that Carter had failed to allege speech sufficiently public in concern to support a retaliatory discharge claim. He cites two cases in support, both of which touch the "public concern" requirement and neither of which deals with the number of words spoken. And as in Dixon's case, the public concern holding does not imply in any way that Carter's speech was outside the First Amendment altogether. It's unfortunate that Jackson wrote broadly-worded sentences such as "the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection" when what he meant was "the Court does not believe Plaintiffs Carter and McCoy have alleged speech that is sufficiently public in concern to garner First Amendment protection in the retaliatory discharge context."

Note that this reading -- and I think it's the only tenable reading -- leaves the "like" button protected outside the retaliatory discharge context. And even in the retaliatory discharge context, I believe Jackson would have found a public concern on different facts. Suppose that Carter had "liked" Mitt Romney's page. Unless he knew Romney personally, his "like" could only be seen as touching a public concern. If Sheriff Roberts had penalized Carter for that use of the "like" button, the case would have come out differently. That being said, it's relatively rare for a First Amendment retaliation case to deal with statements that aren't in some sense personally motivated.

Thorpe: In his ruling, Judge Jackson wrote that the "like" wasn't protected because it doesn't "involve actual statements." In this age of clicking our opinions, does the definition of speech have to evolve?

Langvardt: I don't think Jackson meant to hold that "likes" are not speech, and if that's how the holding is read, he will be reversed. I don't think anyone actually disputes that the "like" is speech. So from there, if you like the "like" button, if you want the First Amendment to protect it, then no, the definition of speech doesn't have to evolve. If, on the other hand, you think that the "like" button should not be protected, then the definition of speech does have to evolve.

I don't see any policy reason to withdraw protection from the "like" button. Sure, it's more a vehicle for me-tooism than for high political expression. But so is putting your candidate's bumper sticker on your car. So is a shirt saying "I support gay marriage." The fact that expressions of "support" are banal doesn't imply that they should be more closely regulated.

Thorpe: The ACLU says in its filing that "It is binding First Amendment law that irrespective of an employee's position, a public employer cannot terminate him or her for speech on a matter of public concern unrelated to his or her job duties." Is this a persuasive argument in this case?

Langvardt: It's overstated. When government officials speak in the scope of their official duties, it's not protected. When they speak outside the scope of their official duties on matters of public concern, it may be protected. But even then, the employer's interest in the efficient functioning of the office will be weighed against the employee's right to speak, and if the balance favors the employer, then the employer is free to penalize or terminate the employee for the speech.

Thorpe: Why do you think Facebook has joined the case?

Langvardt: It's in Facebook's interest for as many people to "like" as much stuff as possible. If people think they will be fired for "liking" stuff, then they won't do it.

Thorpe: Does this case have the potential to go to the U.S. Supreme Court? What do you think its fate might be there?

Langvardt: I doubt it will end up in the Supreme Court. If Judge Jackson is read to hold that "likes" are not speech, then the Fourth Circuit will reverse that holding, and there will be no reason for the Supreme Court to readdress the obvious.

If Judge Jackson is read more closely, then the question on appeal becomes whether you address a public concern when you "like" your boss's opponent's campaign page. I don't think there's enough riding on that question for the court to take up the case.

Published: Wed, Aug 29, 2012