Facebook "Likes" gain constitutional protection for US employees

Filed Under: Facebook, Featured, Law & order, Social networks

Happy day, USA: When we click "Like" on Facebook, we are now constitutionally protected from getting fired!

If you're thinking, "Well, duh, wasn't I already?", join the club.

In fact, at least one court had hitherto decreed that the First Amendment to the US Constitution, which (more or less) ensures the right to free speech, didn't apply to Facebook Likes.

The case came to court after a sheriff from the state of Virginia fired six employees for supporting his opponent in an election.

Mashable's Lorenzo Franceschi-Bicchierai reports that B.J. Roberts, the sheriff of Hampton, Virginia, had fired the employees who supported Jim Adams, his opponent in the sheriff's election.

One of the fired employees, Former Deputy Sheriff Daniel Ray Carter, had Liked Adams's Facebook page.

The fired employees, Facebook and the American Civil Liberties Union (ACLU) joined forces to fight the dismissals.

Together, they argued that a Facebook Like must be considered free speech, which would in turn mean that employers couldn't legally fire employees for expressing their opinions on the network.

In the first federal ruling on the case, a federal district judge had said that a Like was "insufficient speech to merit constitutional protection", as Mashable reports.

The judge ruled that a Facebook Like didn't involve an "actual statement", unlike Facebook posts, which have hitherto been granted constitutional protection.

On Wednesday, that decision got its own thumbs-down in a federal appeals court.

Judge William Traxler, who authored the decision, said that clicking Like is much the same as putting up a political sign supporting a candidate in your front yard:

"Liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. ... It is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech."

Both the ACLU and Facebook's legal counsel are applauding the decision.

The decision reinstates the claims of Carter, along with two other fired employees, but they haven't yet actually won the case. If they do, they might get their jobs back, Franceschi-Bicchierai reports.

As commenters on the Mashable story have noted, Facebook Likes can be convoluted creatures. In order to continue to see posts appear in our news streams, we need to click Like, whether that aligns us with candidates we detest or news we abhor.

But regardless of why we click Like, it shouldn't come back to haunt us. Facebook is now very much an outlet for speech that deserves protection, whether it's to support a candidate or to follow news about, for example, cancer research.

We follow things. We Like things. We shouldn't be punished for it.

That doesn't mean you shouldn't clean up your slimy Facebook trail if you post about your drunken binges or how much you hate your boss.

As far as I know, the First Amendment doesn't cover dumb.

Good luck with the case, Mr. Carter, et al. I hope you get your jobs back.

UPDATE: As commenters on my original post have pointed out, this decision doesn't necessarily protect us all, but it will hopefully set a precedent for how other courts interpret the First Amendment as it pertains to online activities. Thanks for the input goes to Don Amith and csh.

Image of suited bloke telling you to get your coat courtesy of Shutterstock.

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13 Responses to Facebook "Likes" gain constitutional protection for US employees

  1. Don Amith · 348 days ago

    Unfortunately a ruling by a Federal Appeals Court only carries force in that District, not in all districts.

  2. csh · 348 days ago

    Your constitutional right to free speech does not necessarily affect an employer who is NOT a public office. Nor should it. Constitutional free speech protects you from government censure, in any form, and that applies to all public institutions. However, it says very little about the legality of a private company dealing with its employees on its own terms.

  3. Lisa Vaas · 348 days ago

    You're both right. Hopefully, this decision will set a precedent of how other courts interpret the 1st Amendment as it pertains to online activities, but it makes sense that it would pertain mainly to the government as an employer. I'm sorry if I overstated it—I was influenced by Mashable's headline about LIkes being protected by the US Constitution. Thanks very much for your input, Don Amith and csh.

  4. As stated, this is irrelevant in individual contracts. An employer has a contract with employees and those employees represent the employer's business. But regarding the government to individual rights, should you have a situation where this applies in the workplace, what is to stop someone who sees your likes from looking for other reasons to fire you?

  5. Pablo · 347 days ago

    This fired people has nothing to do with the Constitution.

    Picture yourself in the situation: You are the sheriff BJ Thomas and some employees come and say in your face "I like someone else to get your job". What do you do?

    If one of my employees suggest something like this, for sure is going to get fired.

    The Constitution protects the free speech and I'm right with this, but say nothing about the reaction of the one being affected.

    BJ Thomas has the right to fire anyone he can't put his trust on.

  6. paranoid · 347 days ago

    If not legally questionable, still there are many ways one could get harassed by the employer for not being in line with his/her opinions.... We ought to be more cautious when in Cyberspace 'imposed by Facebook'..

  7. Wolf_Star · 347 days ago

    Ha! Just because the courts say that "Liking" something on Facebook can't get a person fired, doesn't mean it won't happen by that person's employer finding some other "reason" to get rid of them. The employee most likely just won't be able to prove it.

    Just because someone has the *right* to do something doesn't mean they *should* do it. Too many people mistake having a right to speak freely as a right to wave a red cape in front of a bull and then complain when they get gored. Or similarly, having the right-of-way will not protect someone from getting run over if they carelessly step in front of a truck.

    Respect is a two way street. When one works for an organization, one should at least have enough respect for it and those one works with, to at least try to use some tact when representing one's self as an employee of said organization (e.g., by posting it on Facebook) and refrain from embarrassing either the firm or one's co-workers through questionable posts (or "Likes," as it were) in a public forum.

  8. John C · 347 days ago

    I think I'll move to Hampton so I can vote against Sheriff Roberts in the next election.

  9. Ben · 347 days ago

    Another consideration is whether or not a person is considered an "at will" employee. Very generally speaking, an at will employee can be terminated for good cause, bad cause, or no cause at all as these situations illustrate:

    You're caught stealing company property. = good cause
    You're accused of stealing but in actuality you didn't do it. = bad cause
    The boss simply says don't come in tomorrow, we no longer need you. = no cause

    At will employees have very limited protection for "wrongful terminations". In order to prove a wrongful termination it usually involves showing that the termination was discriminatory, retaliatory or otherwise illegal under federal guidelines (race, age, gender, religion, disability, or national origin.)

    EEOC lawyers are fond of saying, "Just because an employer acts like an a$$hole doesn't automatically mean he violated *your* rights as long as he acts like an a$$hole towards everyone."

  10. All the more reason to lock down a social network and limit to close friends and family, and, not include coworkers and other *******s like a megalomaniacal boss who wants absolute control of you.

  11. Jack Wilborn · 346 days ago

    BJ fired his workers, not really his employees. As they work for the city or state. Replacing a certified officer costs money, like big time as there are many things that must be done and if you are not certified you can't fill the position. Most officers are certified by the state, so you can't bring another officer into the job without finding them in the state or an agreement with whomever certifies them that they will transfer certification, which is not usually done. So when an officer is let go, finding another officer in the state is not only difficult but sometimes impossible. It's not like a regular job where you can just pick up someone if you fire or lose someone. It's also a matter of safety when you remove a part of the group the others must cover them until they are replaced, so you put other citizens in danger. If I were there, I'd vote this idiot out of office!

    Jack

  12. Connie T · 346 days ago

    You really shouldnt have to "like"- on Facebook or otherwise- someone just because you work for them. They pay for your time, not your affection. I had bosses I didnt really care for, or agree with, didn't mean I couldnt do my job.
    If they are a good employee, doing a good job, then they should stay. Its really just a childish reaction on the part of the Sheriff instead of an adult reaction, which would be to realize if so many of the people working for him don't like him, he must be doing something wrong. He should look for ways to shape up, and become someone his employees admire.
    Sheriffs come and go with elections, but the officers stay, so sometimes they will like one over another. Just because we don't like our current mayor, or governor, or president doesn't mean we should have to shut up and move (or get kicked out!). There will be another election eventually, and its not right that these childish types think they should be surrounded by sycophants in the meantime.

  13. Wolf_Star · 344 days ago

    If I "Like" some of these comments, I'm in no danger of getting fired?

    Whew!

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About the author

I've been writing about technology, careers, science and health since 1995. I rose to the lofty heights of Executive Editor for eWEEK, popped out with the 2008 crash, joined the freelancer economy, and am still writing for my beloved peeps at places like Sophos's Naked Security, CIO Mag, ComputerWorld, PC Mag, IT Expert Voice, Software Quality Connection, Time, and the US and British editions of HP's Input/Output. I respond to cash and spicy sites, so don't be shy.