Facebook “Likes” and the Question of Free Speech

By US Daily Review Staff.

For most people when they click the “like” button on a Facebook page they don’t think twice about whether that could affect their job. But, as social media rises in popularity and becomes more of a fixture in our everyday lives, consumers will have to start considering how their actions on social media sites could affect their ‘offline’ lives, according to employment lawyer Eric Grover of Keller Grover LLP.

The question about Facebook “liking” is now showing up in courtrooms across the country as judges are trying to determine whether First Amendment rights protect employees in the social networking world.

According to a recent decision by a Virginia district court judge, a Facebook “like” is not constitutionally protected free speech. The case looked at whether Sheriff B. J. Roberts of Hampton was entitled to fire six employees, because their actions on the social media site allegedly “hindered the harmony and efficiency of the office.” The terminated employees had all clicked the “like” button on the page of the sheriff’s political opponent, Jim Adams, in a 2009 re-election bid which Roberts won, the New York Times reports.

The terminated employees subsequently sued after they were fired, claiming that their First Amendment rights were violated. But Judge Raymond A. Jackson of the Federal District Court determined that simply clicking Facebook’s thumbs up button did not constitute expressive speech. The judge clarified the point by indicating that if the employees had written out a message and posted it on the site, it would then be covered under their First Amendment rights.

The crux of this employment lawsuit ultimately hinges on whether a “like” qualifies as protected speech. Typically the court would have to determine what role an employee’s statements played in their termination and whether there were other sufficient grounds for termination, such as insubordination or incompetence. That said if the speech was not protected then it cannot be a factor in determining whether the termination was legitimate.

The terminated employees allege that their expression of support for the sheriff’s opponent was a protected political statement and that the “thumbs up” icon for a Facebook “like” is no different that an actual thumbs up, which is a legitimate expression of an opinion, hence protected.

“The laws regarding the limits of free speech in the new world of social media are just starting to develop,” noted employment lawyer Eric Grover. “Until clearer standards evolve, both employers and employees need to be careful about what they say or do on social media outlets.”

The ruling is expected to be appealed and potentially may even reach the Supreme Court.

All opinions expressed on USDR are those of the author and not necessarily those of US Daily Review.

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