Facebook’s like feature faces free-speech test in sheriff firing

Danny Carter shocked colleagues when the Hampton, Virginia, jailer posted a picture of his boss’s opponent in the sheriff’s race on his Facebook page along with a link to the contender’s website.

The post, made almost four years ago because Carter clicked the “Like” button on the “Jim Adams for Hampton Sheriff” page, is now the subject of a federal appeals court argument over whether the U.S. Constitution’s First Amendment protects one-click, online endorsements of a person, idea or product.

A three-judge panel of the U.S. Court of Appeals in Richmond, Virginia, is set to hear today from lawyers for Carter and Facebook Inc. seeking to reverse a lower-court ruling that a Facebook “Like” isn’t protected speech, and that Carter, consequently, couldn’t bring a retaliation lawsuit after he was fired from the department.

“If the decision is allowed to stand, that would be very important in a negative sense,” Gregg Leslie, a lawyer at the Reporters Committee for Freedom of the Press, said in an interview. “When you say you like something just by clicking on it, it’s no different than saying ‘I agree with this position.’ It’s impossible to believe the Fourth Circuit won’t say that’s expression.”

Facebook, in a March 20 filing asking the appeals court for time to argue, said it has a “vital interest” in ensuring that speech on Facebook and other online communities “is afforded the same constitutional protection as speech in newspapers, on television and in the town square.”

Campaign Sign

Hitting the ‘Like” button on a candidate’s website or Facebook account is no different from putting up a front-yard campaign sign, which the U.S. Supreme Court held in 1994 was protected by the First Amendment, the Menlo Park, California- based company said in a separate filing.

Carter, 40, along with five other former government employees, sued Hampton Sheriff B.J. Roberts when they were fired from their jobs after Roberts won re-election in 2009. They claim Roberts retaliated against them for supporting Adams in violation of their rights to political affiliation and rights to speak as citizens on issues of public concern.

U.S. District Judge Raymond Jackson in Norfolk, Virginia, on April 24, 2012, dismissed the lawsuit, rejecting the plaintiffs’ First Amendment claims.

He ruled that simply liking a Facebook page didn’t amount to “a substantive statement” that warrants constitutional protection.

Actual Statements

Jackson pointed out that two federal court decisions in 2011 holding that constitutional protections extended to Facebook involved actual statements posted on a user’s page.

“The court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’s Facebook page,” Jackson, appointed by Democratic President Bill Clinton, wrote in his decision. “For the court to assume that the plaintiffs made some specific statement without evidence of such statements is improper.”

Jackson’s ruling was criticized by constitutional lawyers who said he ignored the fact that other protected speech on the Internet, such as uploading a video or donating money to a campaign, are done with one click of a button.

“You are expressing the relevance of a message and that’s good enough,” Eugene Volokh, a law professor at the University of California at Los Angeles, said in an interview.

Performance Issues

Roberts said in a deposition that he doesn’t use Facebook, and found out about Carter’s Facebook support for Adams from someone else. He contends Carter and the other employees weren’t fired for their opposition to his campaign. Rather, they were let go for performance or other reasons.

Traditionally, the effect of the speech on the listener is what determines whether it’s protected, Marc Zwillinger, an Internet privacy and security expert, said in an interview.

In regards to Carter, Roberts “heard he liked another candidate so it wasn’t ambiguous to the sheriff,” Zwillinger said.

Robert McGee, a captain in the sheriff’s department, said in a deposition in the case that he and his colleagues were “basically shocked” that Carter’s photo appeared on Adams Facebook page as a supporter — a result of having clicked the “Like” button.

Jeff Rosen, a lawyer for Roberts, said even if the court finds clicking “Like” to be protected speech, Carter can’t prove retaliation because his wife, who also works for the sheriff, wasn’t fired even though her picture appeared in Carter’s Facebook profile photo that posted to the opponent’s page. Facebook users can attach any photo or image as their profile picture and his included his wife.

“He has to prove that act was the predominant reason he wasn’t reappointed,” Rosen, of Pender & Coward PC in Virginia Beach, Virginia, said in an interview. “How can he do that when he also posted his wife’s picture.”

The case is Bland v. Roberts, 12-1671, U.S. Court of Appeals for the Fourth Circuit (Richmond).