One Perspective: Facebook 'likes' and political speech

Scott Forsyth, The Daily Record Newswire

Sixty years ago Dwight Eisenhower ran for president. If you supported him, you sported a “I Like Ike” button. If Eisenhower was running today, he would construct a Facebook page. You could express your support for him by “liking” the page.

You would think both forms of support are political speech, fully protected by the First Amendment. Not so, in the opinion of a federal district court in Virginia. To quote it, “(m)erely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” This view will be tested on appeal.

The case involves the sheriff of the City of Hampton. In 2009 he won reelection in a hotly contested race. Six of his employees openly supported his opponent. Among other activities, they posted comments on and “liked” the opponent’s Facebook page.

Following the election, the sheriff fired the six. He gave various nonpolitical reasons, including they “hindered the harmony and efficiency of the office.”

The six believed the firings to be punishment for their exercise of their First Amendment rights of speech and association and sued the sheriff. He moved for summary judgment, which the court granted.

The court found the plaintiffs did not provide sufficient evidence the sheriff actually knew about their support of his opponent. As for the “likings” of the Facebook page, knowledge was irrelevant.

“Liking” a Facebook page “is not the kind of substantive statement that has previously warranted constitutional protection. The court will not attempt to infer the actual content of (plaintiffs’) posts from one click of a button on (the opponent’s) Facebook page,” Bland v. Roberts, No. 04:11cv45, 2012 WL 1428198 (E.D. Va. 2012).

The ACLU and Facebook have filed amicus briefs in support of the plaintiffs’ appeal. Here is the gist of the ACLU’s argument.

Contrary to the court, a Facebook “like” publishes text that literally states the user likes something, be it an individual, an organization, an event, a team, a restaurant or a cause. A “thumbs up” symbol is distributed. Others understand that the user supports, approves or enjoys the content being “liked.” In this way the user is making a substantive statement.

“Liking” a political candidate is akin to endorsing the person. “Discuss(ing) public issues and debat(ing) the qualifications of candidates are integral to the operation” of government. The First Amendment “affords the broadest protection to such political expression,” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995). Supporting a candidate by “liking” his or her page falls within that protection.

If clicking a mouse on the “like” button is not pure speech, as suggested by the court, it is symbolic speech. The user intends to convey a particularized message of political support and others understand fully the message to be one of support.

The click of a mouse is no different from the wearing of black armbands in school to protest the Vietnam War or the burning of an American flag outside a political convention to protest the party’s domestic policies.  All are symbolic speech, which cannot be punished absent a special showing by government.

Public employees are protected by the First Amendment when they speak about matters of public concern. To overcome this right, a public employer must demonstrate the speech actually disrupted the orderly operation of the workplace or the efficient delivery of services by the public employees, Pickering v. Bd. of Educ., 391 U.S. 563 (1968).
The merits of a candidate for political office is a matter of public concern and several courts have so held. Public employees often know best what ails their employers. Debate about public employers gains from the employee opinions.

The plaintiffs spoke on their own time, on a non-work website. The subject of their comments was not related to their official duties as deputies. What they said represented their personal opinions as citizens about the worth of one of the candidates for sheriff, a matter of public concern.

The sheriff’s sweeping conclusions notwithstanding, it is difficult to imagine how the plaintiffs’ online speech impaired his ability to run his office efficiently. Clearly the speech made him mad but that was his problem.

Whatever the outcome of the appeal, the district court, in fact all courts, need to accept the prominence of Facebook and other social media in our lives. They present new ways of communicating traditional ideas, like the support of a political candidate.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

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