Sunday, May 26, 2013

'Like' the First Amendment




By Bob Stewart

Employees fired by Hampton County, Virginia Sheriff B.J. Roberts allege that he did so because they “liked” a Facebook page. The page belonged to the candidate running against Roberts in the general election. Though the employment terminations took place about a month after the election that Roberts won, he denies his reasoning related to Facebook.

Six former employees sued Roberts for violating their First Amendment rights in Bland v. Roberts (857 F. Supp. 2d 599), in U.S. District Court. This case appears to be a fair battleground to determine whether or not Roberts fired the employees for expressing their support for his opponent, or as he contends, that unsatisfactory work performance and budgetary concerns were the reasons. However, Roberts moved for summary judgement on the basis that the Facebook “like” was not expression.

Judge Raymond A. Jackson granted summary judgement on that reason. Despite acknowledging Roberts did know about the Facebook “likes,” Jackson opined that a form of expression that simple does not rise to the level of Constitutional protection.

“Simply liking a Facebook page is insufficient,” Jackson wrote in his decision. “It is not the kind of substantive statement that has previously warranted constitutional protection.”

To be sure, this case is as nuanced as social media expression itself. In addition to the Sheriff’s claims that he had good reason to fire the employees, several other layers of protection exist, including the notion of state sovereignty. He also possesses “qualified immunity” according to Jackson. Government employees are immune to civil suits for their decisions as long as, “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Further, Roberts says he knows he does not have the right to fire employees for expression. In that case, the plaintiffs would have to prove that Roberts knew Facebook “liking” was constitutionally protected expression. But that is all immaterial to whether or not “liking” a Facebook page is actually protected expression.

The summary judgement is being appealed to the 4th Circuit Court of Appeals. Based on prior decisions the summary judgement here should be overturned. The Supreme Court of the United States ruled in Tinker v. Des Moines that wearing black armbands to protest the Vietnam War was protected “speech,” even though no specific message was spelled out (393 U.S. 503). The Federal Courts consider the medium of Facebook an adequate platform for protected speech. In Gresham v. City of Atlanta, the District Court ruled that a police officer’s Facebook posts are protected (10-CV-1301-RWS (N.D. Ga.; May 7, 2012)). The Supreme Court has developed a test that should apply in this case since the act of “liking” a Facebook page is conduct. The Court asks two questions. The first question is to determine whether there is intent to express a message. The second is to determine whether it is likely a witness will understand the message. The court clarified in Texas v. Johnson, a flag burning case, that the witness does not need to understand the exact message (Texas v. Johnson, 491 U.S. 397).

So first, Facebook users express something when they “like” a page or another user’s status or comment. They have read the information or at least know the content of the page before they “like” it. What the expressed message is can vary. So whether the expression would be understood is a fair question. Perhaps the user “likes” something because it is funny, poignant, or it is exactly what he would have written given the opportunity. In the case of a candidate’s page, or that of a group or business, it usually means an endorsement of the candidate or product. Other Facebook users know what that means generally. Evidence of this is that there are many companies, like  “Get-Likes.com” and “fbviro.com,” whose sole purpose is to get your Facebook page more “likes.” Businesses and political candidates pay money for this type of service. So it is fair to say that a “like” is expression that is meant to be positive toward the entity being “liked.” That means the First Amendment is implicated in Bland v. Roberts.

The 4th Circuit should overturn the summary judgement and remand the case back to the District court to hear the case on its merits. There is fair reason to believe that Roberts was ultimately justified in his actions, or at least not liable. But the court should consider the case, not throw it out on an incorrect technicality.

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