Don’t Believe for One Second that Facebook ‘Likes’ Are Free Speech
Here's what happened: A group of police officers in Hampton, Virginia worked under sheriff B.J. Roberts, an elected official. They didn't really like him, so when their boss was up for re-election, the officers showed support for an opponent in a re-election by “Liking” his Facebook page. Sheriff B.J. didn't really appreciate that, so, after winning the election, he brought down the hammer and fired all the officers that “liked” his opponent's Facebook page. This prompted the angry fired officers to sue over what they felt was protected speech. Last week, they lost. via Arstechnica:
Plaintiffs alleged they engaged in a variety of protected activities, such as placing a bumper sticker on one of their cars and attending an Adams-sponsored cookout, but the court says there is no evidence that Roberts was aware of these activities. The one activity that Roberts knew about was “the presence” of two of the plaintiffs on his opponent’s Facebook page. However, with respect to this activity, the court says that plaintiffs did not point to any specific statements they made on Adams’ Facebook page. One plaintiff claimed he posted a comment to Adams' page, but he later took it down, and the comment wasn't presented to the court. Plaintiffs “liked” Adams' Facebook page, and there was no dispute that Roberts was aware of this, but the court says this is insufficient:
[Roberts'] knowledge of the posts only becomes relevant if the court finds the activity of liking a Facebook page to be constitutionally protected. It is the court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.
Why is this important?
On the surface level, the ruling establishes a ruling on a very specific circumstance regarding employment and Facebook. In case you need it spelled out: Say your co-worker has a rough day and writes, “My boss is a fu*kin' fu*kin' jagoff and I hate him!” And you, in a display of co-worker solidarity “like” this status update without thinking a lot about it. But, whoops! You're friends with your boss on Facebook and he sees it. Yeah, that's not good. According to this ruling, you no longer have the grounds to say “freedom of speech” when he fires you for “liking” that status update. He's in the clear. And you're without a job and without the grounds to sue the bejesus out of your former employer for unlawful termination.
Now that Facebook is well out of it's rowdy adolescent stage and poised to become one of the biggest companies in the world when it IPOs in a few months, we're starting to see how society defines it's day-to-day use via the courts and legislation. Back in 2009, a court opinion ruled that Facebook “friends” don't count as real friends. That was kind of a no-brainier. And, as long as all systems remain go, Congress will pass a bill banning employers from spying on their employees via Facebook. But where this ruling gets a little murky is how people use Facebook “Likes.” One camp would argue that, yes, one must actually like it to hit the “Like” button. But another would say its used as a free speech media-consumption decision, just like how I choose to occasionally opt-in to watching Fox News, even though I may disagree with their views. Many just use the “Like” button as an opt-in to aggregate Facebook pages to their newsfeed. It doesn't mean that you necessarily “like” it, but more that you're choosing to have that particular thing placed infront of you. Just like “friending” someone isn't really becoming friends with them, “liking” something doesn't necessary mean an endorsement nor establish a relationship with a brand or person or campaign or cause.
Should the case be appealed and go up the U.S. court system to establish “liking” as protected First Amendment speech? I can't see how that would hurt, especially as Facebook's power continues to grow and grow as a Goliath of the Internet era.
And for a better explanation and analysis on the implications of the ruling, jump over to Arstechnica.com.