Are Facebook 'Likes' Protected by the First Amendment?
G. Edward White
A sheriff’s deputy in Hampton, Va., was fired allegedly for "liking" the Facebook page of the sheriff’s opponent in an upcoming election. The deputy sued, claiming that his First Amendment rights had been violated.
In April, a federal judge ruled that clicking Facebook's "like" button was not protected under the First Amendment. The 4th U.S. Circuit Court of Appeals is now considering the case, and Facebook and the ACLU have filed briefs in support of the fired deputy, Daniel Ray Carter.
Should "liking" something on Facebook be protected by the First Amendment? And should other social media actions — such as sharing a link or retweeting an opinionated Twitter post — be protected as well?
G. Edward White is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law. He is an expert in constitutional law, legal history, the Supreme Court, legal process and mass communication law.
"There are three issues raised by this case, and none of them is unprecedented in free speech jurisprudence.
One is whether posting something on a social media website is 'speech' for constitutional purposes. The answer is clearly yes. The posting is a form of expression.
Another is whether there is a category of expression that is protected speech but so lacking in meaningful content that its protection is lost. The answer is no. To qualify as 'speech,' an expression needs to be intelligible. So 'contentless' expression is a contradiction in terms. If I post 10 asterisk symbols on a social media website, absent some context in which that posting would be understood as communicating something, it would be unintelligible and thus not 'speech' for constitutional purposes. In the Carter case, signaling that a poster 'liked' the content of another posting would be intelligible, so it would have meaningful content for users of the website.
So the 'like' posting would be speech, and because it represents a signaling of preference in a political election, high-value speech. This raises the third issue, whether political speech by government employees may be restricted. The answer is yes in some circumstances, such as where the speech in question would undermine the goals of the government in some fashion. Expressing a preference for the opponent of one's boss in a forthcoming political election would not seem to qualify.
In sum, I expect the Fourth Circuit to reverse the judgment of the trial court."
George Rutherglen is the John Barbee Minor Distinguished Professor of Law and the Earl K. Shawe Professor of Employment Law at UVA Law.
"The First Amendment protects the right of public employees to comment on matters of 'public concern.' Another issue in this case is whether 'liking' someone on Facebook goes to a matter of general interest to the public. It might well when it involves, as here, a candidate for public office, even if he is running against the employee's current boss.
A further issue is whether legitimate interests in regulating public employment outweigh the interest in protected speech. The sheriff's office might have legitimate reasons to limit political comment by the office's employees. Just protecting the current sheriff's job, however, is not one of them."
UVA Law Professor Leslie Kendrick is an expert in First Amendment law, particularly the freedoms of speech and the press.
"The right question is not whether 'liking' something on Facebook is protected speech. The right question is whether the government fired the employee for expressing a viewpoint. In this case, the allegation is that the sheriff's office fired the deputy because it took his Facebook activity to express support for the sheriff's opponent. If the deputy was fired on the grounds that he expressed an unwelcome viewpoint, it does not matter whether the purported expression took the form of a Facebook like, a bumper sticker or a street placard. The First Amendment is implicated when the government penalizes someone for his viewpoint.
Whether the deputy ultimately has a successful claim is a more complicated question. But it would be a mistake to conclude that this is not a First Amendment case just because it involves social media. The allegation is that the government penalized an employee because it didn't like what it thought he was saying. That is enough to make this a First Amendment case."
UVA Law Professor J.H. Verkerke is an expert in employment law and is director of the Program for Employment and Labor Studies at the Law School.
"First, employer retaliation for workers' expressive activity on social media platforms has become an increasingly common basis for legal claims. Almost all of these claims have arisen in the private sector. Unlike Carter — the Hampton, Va., sheriff's deputy — these employees cannot assert a claim under the First Amendment because their employers' personnel decisions do not involve state action, which is necessary to invoke constitutional protections.
Instead, social media cases in the private sector have relied on workers' rights under Section 7 of the National Labor Relations Act to engage in "concerted activity for mutual aid or protection." As the Washington Post notes, the National Labor Relations Board has pursued a number of cases involving comments posted on Facebook and other social media platforms. The NLRB general counsel has also issued a series of memos to provide enforcement guidance for regional offices and for employers. Those memos are available on the NLRB website.
Another related dispute has arisen over private employers' insistence that job applicants provide their Facebook passwords so that the employers can look for incriminating photos or postings. A number of states have adopted and several others are considering legislation that prohibits this practice.
Concerning the Carter case itself, it seems to me that clicking the 'Like' button on a Facebook page involves significant expressive activity. Information about what a user 'likes' is available both from the user's own page and on the page that he or she has 'liked.' Other Facebook users have access to this information and may adjust their own behavior in response to a 'friend’s' expressive activity. For First Amendment purposes, I would be reluctant to exclude some forms of expression because they are displayed online or result from clicking a button rather than writing, typing, speaking or spending."
Is It Legal? is an occasional feature in which UVA law professors weigh in on legal aspects of current events.