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Facebook 'Likes' Aren't Protected Speech
An anonymous reader writes "In what may win awards for the silliest-sounding lawsuit of the year, a case about whether Facebook 'likes' qualify for free speech protection under the First Amendment has ended in a decisive 'no.' In the run-up to an election for Sheriff, some of the incumbent's employees made their support for the challenger known by 'liking' his page on Facebook. After the incumbent won re-election, the employees were terminated, supposedly because of budget concerns. The employees had taken a few other actions as well — bumper stickers and cookouts — but they couldn't prove the Sheriff was aware of them. The judge thus ruled 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.'"
On what planet is money a form of speech but indicating your support for something not?
Considering that the federal government has caused researchers to lose their jobs over entire books their have published, it is hardly surprising that such a minute form of expression would not be considered "protected."
Palm trees and 8
You can be fired for your Facebook likes, but since they don't count as free speech theoretically this means the government could regulate them.
It's an unfortunate decision that's likely to become a precedent for future cases where your free speech will be further restricted.
I'm convinced. This is pretty clearly a violation of free speech. It's not the "like" that's being silenced. It's the political support for the other guy.
I don't know about America but here in Europe this is one of the rare cases when the burden of proof is on the accused. The employer has to prove that the justification he gave when firing those people was valid. In a case like this, he would have to prove that there wasn't enough money. If he fails to do that, for example because he hired new people to fill the empty positions, then he loses.
The problem here is that even if 'likes' were considered free speech, it would be almost impossible to prove that they were fired because of that.
It sounds to me like it was not that it wasn't protected speech. Rather that liking something on facebook was insufficient evidence to support the claim that the employer fired based on politically protected speech. Although I have to say the way it was worded does make me unsure if this is in fact the case. It does seem like the court said it was due to being unprotected based on the quote/summary still.
Yes, you can be fired for stating your opinion on an issue. Actually, you can be fired for any reason at all, as long as they make up a good reason for it.
It is the courtâ(TM)s conclusion that merely "liking" a Facebook page is insufficient speech to merit constitutional protection.
This has got to be the silliest ruling I've heard in a while, it's at least as protected as putting your signature on a petition. You're endorsing a group or organization or person and what they stand for.
Live today, because you never know what tomorrow brings
First of all, are Sheriff's dept. employees granted the right to speak their opinion on a Sheriff's election without fear of losing their jobs?
One could argue that they either should or shouldn't: Pro would be they should be civil servants not beholden to any one political officeholder or another. Con would be that if the Sheriff were elected on a platform, he would need his own people in there to implement his goal.
Anyway, if Sheriff's employees do have a right to protected free speech in general, it boggles the mind as to how a Facebook like is not speech.
I'm hoping the judge didn't say that a Facebook Like doesn't make use of the vocal chords, and hence, it's not "speech"?
I'm not a lawyer, but I play one on the Internet. Blog
If it can be proven that there is any pattern to the layoffs corresponding to the Sheriff's political opposition, he should be sued for the obvious civil rights violation.
For a lot of money, and thrown in jail, too, if possible.
expandfairuse.org
So i guess the moral of this story is don't "like" anything...
thrown in jail, too, if possible.
But who will arrest... the sheriff? Badum-CH!
It's nice and catchy, but the vast majority of this decision was centered around the plaintiffs not producing nearly enough evidence to assert their claims. Most courts would consider the statements about the likes to be dicta - authoritative, but not binding.
This is a decision from the US District Court of Eastern Virginia> there are two more apeal levels to go; US Court od Appeals and The Supreme Court of the United States. This is going to be appealed mainly due to the SCOTUS taking a very broad view of what is protected speech when political office is involved.
Where do you get such crazy talk????
This is not true if you are talking about government positions, other than the military (why should they be expected to enjoy the freedoms they are supposedly dying for?).
The court really does appear to have held that "liking" a post isn't speech with sufficient content to even count as speech in the first place, and therefore the court didn't have to look into the question of whether it was really the reason for the person being fired.
That seems very bad and clearly wrong, since it would mean that these kinds of expressions of support could actually be regulated by the federal government, if the First Amendment doesn't apply at all. Expressing your support for something is definitely a kind of expression.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Fortunately not all states' laws are the same. New Hampshire has one of the strongest public employee freedom of expression statutes in the country.
Liberty in your lifetime
You got your terms mixed up. Right-to-work means membership to a union cannot be a requirement for the job. At-will employment is where either party can terminate the relationship without giving a reason.
When questioned by reporters, the judge responded, "My cousin^H^H^H^H^H^H The sheriff is a hard working public servant who had to make some tough budget choices."
-- Will program for bandwidth
This is not true if you are talking about government positions, other than the military (why should they be expected to enjoy the freedoms they are supposedly dying for?).
As I am sure you know, the military holds a unique position in any government (they have the guns, and thus the ability to effect change unilaterally.) That's why we severely constrain what a soldier can do when representing himself as a soldier. In the old days, "crossing the Rubicon" was automatic treason, not an expression of freedom.
"...And what's more, being a miner, as soon as you're too old and tired and ill and sick and stupid to do your job properly, you 'ave to go. But the very opposite applies to judges – so all in all, I'd rather have been a judge than a miner..." -- Monty Python
Any guest worker system is indistinguishable from indentured servitude.
If you want to follow any discussion taking place on a facebook page, you usually have to "Like" it first. The word implies that you are supporting it, but you might just do it for the sake of curiosity, not to show how you genuinely feel about a subject.
>why should they be expected to enjoy the freedoms they are supposedly dying for?
Because following orders from people who know the big picture is more important to the overall objective then your feelings. If soldiers were always questioning orders the military would fail in all of it's endeavors.
Sorry, teleporters just kill you and then make a copy. A perfect, soul-less copy.
When I worked for a state government agency, we were expressly told that we were not allowed to discuss our political views, have political bumper stickers, etc, as it would be grounds for termination. If the state is an At Will state, the local/state government can terminate you for any cause they want. Note that a Sheriff's Dept is not a federal government agency, so it's subject to the state's policies, the counties policies, etc, as long as they are not terminating for the protected reasons (gender, etc)
... because that tells me the judge just doesn't want to hear both sides in a real courtroom where we can see what the real case is about. Maybe he's on the take? No proof of that, but situations like that do get lots more summary judgments. It does sound suspicious, to me.
now we need to go OSS in diesel cars
And how doesn't the same argument apply to any other governmental employee?
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It is very simple to verify if the firings were due to budget choices; are the positions open or have other people been hired to fill them? If they have been filled thatn the reason for firing is not budget constraints and the Sheriff lied.
Some places don't allow government managers to direct the political activities of government employees.
So would getting fired by liking someone running against your boss be the same as getting discharged for wall posting your dislike of your commander? The problem isn't a matter of free speech - we are all free to say or post whatever we want on Facebook, it seems the issue is when our personal opinions become valid reasons for someone's termination. Instead of trying to put this kind of stuff under 'free speech' shouldn't we be trying it under 'discrimination and retaliation' laws?
n/t (dnrta)
Period.
Everyone is obsessed about whether a politician is a republican or a democrat. The D or R is king. If the D is in office and you're a democrat or vice versa then most voters will never vote for the opposing party to get rid of him.
That's what you need to be willing to do on these matters.
Make it clear to the politicians that this is an issue that will cost you elections. And they'll respect it.
Short of that. They don't care.
I've decided to stop wasting my time responding to AC trolls/sockpuppets... so if you want a response from me... login.
Damn it man! I was an anarchist until you wrote that post and proved to me that some laws are justifiable!
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
The other employees aren't armed.
And often deputy sheriffs serve at the pleasure of the Sheriff. As such, I believe that it is possible to fire them for any reason. Ultimately it depends on local regulations. Dick move, but politics is full of assholes who make dick moves.
I don't think freedom of speech protects your job, it keeps you from getting jailed. Ozzie Guillen just got suspended for making the Castro comments. Granted, he still has a job, but he lost income.
Comment removed based on user account deletion
Something about this story sounds completely backward in every way, and maybe someone here can explain if it's the judge, the writer/editor, or just me who is sorely confused.
First of all, insufficient to count as free speech? Have we really come so far from not only the letter but even the spirit of the First Amendment that only certain special classes of speech deserve protection from censorship, rather than (as the law literally states) all speech being completely protected, or at least (as courts have long interpreted) only certain egregiously dangerous speech, such as credible incitement to violence, deserving censorship? Is it really now no longer "is this dangerous enough to censor it?" but "is this acceptable enough to permit it?"
Second of all, who is censoring who here? Someone got fired because their boss didn't like their opinion. In a private business (see next sentence before you jump on this) that's perfectly fine; freedom of association and all that, I don't have to work for people I don't like and I shouldn't have to let people I don't like work for me either; I've quit a job in part because of the owner's political expressions, why should the other way around be any different. In this case it's a public agency so I can see some stricter rules for hiring and firing being required, but nevertheless, in any case, this is a wrongful termination issue, not a free speech issue. This is not the government telling you "you are not allowed to say X"; this is an employer saying "we won't employ people who support Y". How the hell did this become an issue of free speech at all?
-Forrest Cameranesi, Geek of all Trades
"I am Sam. Sam I am. I do not like trolls, flames, or spam."
But its in America. Everybody is armed.
There are actually places in America where its illegal to NOT have a gun.
There are actually places there where you can LEGALLY walk around with a concealed firearm.
Yes I know, it boggles the mind, but its really like that over there.
There are two fundamental freedoms that you can never take away from an American;
The right to shoot people to death, and the right to praise the *LORD* Jesus almighty, hallelujah !
I KNOW I shouldn't feed a troll, but....
Please tell me where this is. I think I'd like to live there. I've heard Alabama, but I've not found corroborating evidence to make that more than speculation.
Yes, in quite a few states. But you must first pass a rigorous test and are still held ultimately responsible for murder if you use too much force in a situation, not to mention the fact that the test weeds out quite a few people (shooting qualifications that is.) A concealed carry permit holder knows more about gun laws and the criminal code after taking the course than most of the general population does. But I can see where it might frighten you to know someone MIGHT be carrying something you don't know about... chicklets... breath mints, hot sauce packets from Taco Bell....
Yes. Those are from the 1st and 2nd amendments to our Constitution. Shows you've been reading.
It's the Stay-Puft Marshmallow Man.
I have a gun, and I am capable of acting unilaterally. Should I be restricted from speaking my mind as a result? Isn't that a crazy suggestion? There's a difference between stating an opinion, and taking an action. It is possible to say you disagree with the government without violently overthrowing it.
"Free speech" protection protect the speech itself and affect ability of government to keep the speaker from distributing it. In itself, a record of clicking on a button in a privately run web site is not worthy of protection. Facebook distributing the summary of those record is protected, however Facebook is not the party being threatened or attacked. So no "free speech" issues are involved here.
On the other hand, selective termination of employees who expressed their opinions and supported a competing election campaign, likely is a violation of several labor laws. Even if Sheriff's office by any chance is exempt from labor laws, employees may be able to prove that the cause of termination is fraudulent, intended to conceal the true reason behind termination.
I think, it's extremely stupid to try to try to use "free speech" protection (that exists to protect all speech, no matter how true, false or opinionated), when the real issue is protection of a person from private retaliation through public channels, especially when deception of the public is involved.
Contrary to the popular belief, there indeed is no God.
Getting a bunch of people to sign a petition or approve of a policy is pretty close to liking some random thing.
I still don't understand why it's so hard to provide free anonymous speech.
It's just a matter of time before the US acts like the other dictatorships and jails people for liking something. Oh, you liked that? Off to Gitmo with you!
from corporations is free speech? this country gets more messed more by the millisecond.
Civil service laws override at-will.
If your state has no civil service laws protecting free speech, your state is de-facto 3rd world and sucks totally.
What state was this, Alabama or something?
Just because it CAN be done, doesn't mean it should!
So if they would have left actual negative comments, they would have been protected. But because they have not said enough, they are not protected?
Except in Florida.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
Really? So what sin had the Poles committed in 1939?
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
it just sounds like the court was friends with the sheriff and wanted to shuffle the issue under.
I mean, what the fuck? firing someone for showing support for a candidate and then denying that a fb like is a show of support? if it's enough to show a clear correlation that liking on fb == fired, then it's pretty clear that it was "speech" as far as the sheriff was concerned, since it prompted an action.
world was created 5 seconds before this post as it is.
If the whole premise of being fired for "liking" something because the employer is saying it implied favorability or bias is ridiculous. "Liking" is the only way to follow Facebook page content, especialy since Facebook has appeared to have axed RSS syndication for Timeline. The First Amendment also protects the freedom of assocation, not just free speech, so I don't know whos to blame here. IIRC the lawyers are responsible for asking the questions, and it may be they picked the wrong argument (speech specifically) for the judge to interpret.
I am not a lawyer, but that's what I took from TFA.
I was once told of a NATO meeting where an American general looked round at his audience and said, in effect "I expect you all realise that if there was major civil unrest in your countries you would have to take over the Government." A British officer got up and said "Actually, old boy, we don't "realise" any such thing and if you continue talking like this we will all walk out".
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
However, I think the GP's "rigorous test" can possibly be summarised as:
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
Drivers also have to pass a test and they also know much more about traffic laws than non-drivers, yet they still injure thousands per year.
And so do gun accidents.
Dilbert RSS feed
The court really does appear to have held that "liking" a post isn't speech with sufficient content to even count as speech in the first place...
They better fix this in the next election ballot then.
Please compose a stirring declaration of support for your preferred presidential candidate within the space provided:
(___________________________________________________) Obama
(___________________________________________________) Romney
Actually I'd like to answer that, the "sin" the Poles had committed was trusting the Brits and French to come in on white horses to their rescue instead of arming themselves to the teeth and prepping for war. When your next door neighbor gives the finger to international law and starts building weapons like there is no tomorrow AND he has written a book where he has made it damned clear that the "destiny" of his people is to conquer and take lands to the east and you are east of them? well stupid fucking you if you don't see that freighttrain about to run over your ass.
ACs don't waste your time replying, your posts are never seen by me.
I think that free speech protection must have some limits. I don't think that my employee that openly supports my opponent will work well for me. And I think that an employee should have some basic loyalty to his employer. Critique is ok, but openly stating support for a competitor is not. And after all that employee wasn't "terminated" in Terminator sense.
Kennesaw, Georgia.
In response to Morton Grove (IL) handgun ban, they passed a law requiring every household to own and maintain a firearm and suitable ammo for same.
I'm not aware that they ever made any real effort to enforce that aw...
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Yes, in quite a few states. But you must first pass a rigorous test
Generally true, but slightly misleading. There are places where a license is required to carry concealed, but open carry is quite legal. New Hampshire is one example.
In addition, so far as I know, New Hampshire doesn't require any sort of testing to get a concealed carry permit - just pay the fee and you're good.
"I do not agree with what you say, but I will defend to the death your right to say it"
How is this any different from telling a pollster that you approve of something? It's basically the same thing, and if stating one's opinion on a political poll is not protected speech under the 1st amendment, I don't know what is. The judge doesn't seem to have thought this through. Note that arguments about whether employers should or shouldn't be able to fire people based on their beliefs are pretty much irrelevant here, because if the judge says this is unprotected speech and the ruling is upheld, the precedent would apply in any situation, not just employment disputes. Unprotected is unprotected. Hopefully a higher court will revisit the issue and overturn the ruling.
I have a gun, and I am capable of acting unilaterally. Should I be restricted from speaking my mind as a result?
Of course not. Because if you go crazy with your guns till even the cops can't stop you, the Military does the job.
The Military are supposed to be the "Biggest Dog" in the Country. And that's why they should be on a "leash".
They are supposed to be the "Gun" that the elected leaders aim at targets. They are not supposed to do the "big picture" aiming by themselves.
It's not so easy to take someone's life with a breath mint even a minor flesh wound would be quite a feat.
On a more serious note I'd be quite concerned if someone was carrying a knife or a baseball bat around in an office or a bar too.
I've nothing against playing baseball fishing or hunting, although I would hope that hunting would be confined to area's where your not going to find other people cycling, riding, walking, or picnicking.
It's not the tool that is a problem but the person holding it that can be and the circumstances.
With a gun I find it hard to see many circumstances in which carrying a gun is appropriate.
Even in the ideal situation a criminal threatens you with a gun, can you really draw a gun quick enough to disarm the guy before he puts a bullet in your head?
Blarney Quality Restaurant, Plants
Most "licensed" motorists in USA/Canada know less about traffic laws than unlicensed citizens. Most motorists know less about traffic laws, or even how to drive a car, than cyclists. I say "licensed" because currently licensed individuals in the USA/Canada would never be able to get a license if they had to go through a proper licensing process such as the Norwegian or German system's.
Please tell me where this is. I think I'd like to live there. I've heard Alabama, but I've not found corroborating evidence to make that more than speculation.
Nope, not Alabama.
Yes, in quite a few states. But you must first pass a rigorous test
Not in Alabama you don't. You fill out a sheet of paper with some basic info, name, SSN, make/model/SN of weapon, etc, and submit it to the sheriff. He will look over your conviction history, if any, and make sure there isn't any disqualifying offenses listed, then issue the permit.
are still held ultimately responsible for murder if you use too much force in a situation
Not in Florida, it appears..
The sheriff was the defendant. The plaintiffs intended to uses the likes as evidence that the defendant fired them for protected speech. The judge said that the likes were not protected speech, which infers that if he did fire them for that then it was legitimate, meaning the case did not need to continue.
So the judge basically says that if you "like" the facebook site of someone opposing the sheriff they can be fired for that because it is not "protected speech", but if you post a lengthy comment on some website telling the world why they should vote against the current sheriff, then you couldn't be fired for that? Doesn't make sense.
No you have to be licensed in Florida too. They fingerprint you and charge you for the license. You're in the system. Why would anyone think that is terrible? Sure, they need to be more proactive in teaching law and conflict resolution (Texas has both in its CHL), but it's not like Dodge City Kansas 1879....
The 2nd Amendment is pretty clear, and the Supreme Court upheld that it is an individual right just like the 1st Amendment.
It's the Stay-Puft Marshmallow Man.
Then you don't need to carry one. But thanks to the 2nd Amendment, you cannot tell me I can't... nor can the government. Pretty simple really.
It's the Stay-Puft Marshmallow Man.
...and your point is? Knives kill thousands a year. Hell, lightning kills hundreds. Poisonous chemicals kill thousands a year in accidental ingestion incidents. Children are killed by opening pill bottles and overdosing.
The tests most states (yes, there are states that let you pay the fee, get fingerprinted, and carry) have for CHL's are pretty rigorous. Much more than the 4 minute multiple choice exam and trip around the neighborhood with officer Dan. You have to be able to shoot... you have to be able to care for your gun and you also have to know EXACTLY when deadly force is allowed and when it is not, and the laws governing that information.
The 2nd Amendment is clear. Yes, I sound like a broken record, but people seem to miss this vital point. Yet they will defend the 1st Amendment to the death... we can't pick and choose our rights... we are born with them. You can choose not to exercise your 2nd Amendment right and I will support you just as I would if you chose to exercise that right.
It's the Stay-Puft Marshmallow Man.
I don't have a 2nd Amendment right.
In any case, my point was simply that tests are hardly enough to prevent guns from being misused. I wasn't making an argument against guns.
Dilbert RSS feed
Yep. First amendment lawyer here. I agree that the court seems actually to have held this (I was skeptical originally given tech sites' tendency to get this stuff wrong...but not this time and I also agree that this is wrongly decided. Fortunately, it is only a district court so it has no precedential value. I'm hoping the decision is appealed so the 4th Circuit can smack this down as I'm confident they would.
So, I hesitate to say "nothing to see here," since a Federal Judge was stupid enough to actually decide this. But some perspective is called for: this is very far from being the settled law in the United States, and I'm confident it never will be.
caritj.org
"I like x", and as such should be considered speech, no matter how narrow the possibility of expression through this means of a like-button is.
So you if you like the Facebook page of a person or organization your employer disagrees with you can legally be fired?
I thought you could pretty much fire someone at will in the US anyway? So as long as you didn't actually say "I'm firing you for exercising your right to free speech" (in the same way you presumably don't say "I'm firing you because you're black and I'm a racist") what difference does it make?
To have a right to do a thing is not at all the same as to be right in doing it
Your comment makes no sense. I guess you were talking to yourself.