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‘Like’ Is Unliked: Clicking on a Facebook Item Is Not Free Speech, Judge Rules

Sep 1, 2012, 08:00 am CDT

Comments

I addressed this case on my blog http://schmidtlawservices.com/2012/06/06/is-a-facebook-like-speech-one-court-says-no/.  It seems to me clicking a “like” button is an endorsement of that Facebook page and is therefore as much constitutionally protected speech as wearing a button or t-shirt.  These people’s names and faces appeared on the page as a result of their click, and a person viewing their profiles could see that they had “liked” the candidate.  This clearly falls in the protected speech area.

By Lisa J. Schmidt on 2012 08 28, 9:15 pm CDT

I wonder if the judge really grasps the implications of the FB media…otherwise, I agree with other commentary that it’s akin to wearing a button or displaying a bumper sticker…so should be protected speech.

By Tim Farris on 2012 08 29, 11:31 am CDT

I’m betting the Fourth Circuit reverses this one on appeal.  Can’t find him on FB, either!

By Alyson D Meiselman on 2012 08 29, 1:00 pm CDT

It’s obviously protected political speech. “Liking” is akin to saying “ditto” to something that one agrees with. But really, shouldn’t Mark Zuckerberg be making this call?

By DCW on 2012 08 29, 1:27 pm CDT

The judge’s ruling is a train wreck. Conduct has long been held to be protected speech. Besides, did “I like Ike” buttons not contain protected speech? Somehow, we have to find a way to pick politics out of law enforcement.

By kraig marton on 2012 08 29, 1:35 pm CDT

How in the **** did this person become a judge?!?  Any first grader in America instinctively knows this is free speech. It is scary mind-blowing to me that a person can grow up in our society, become a lawyer, then judge and not see what is so obvious to 99.99% of us—even if you’ve never been in law school one day. Judge’s logic does not pass the smell test, giggle test, let alone any constitutional test. This is a reason why we need term limits for federal judges. If a judge does not have a basic understanding of the First Amendment, we should not have to suffer having that person on the bench for life.

By Scott on 2012 08 29, 2:07 pm CDT

If clicking on the Like button is not quite free speech because it is somewhat nebulous (one can use the “Like” button merely as a way to follow a page or conversation), the Sheriff’s actions might seem even more troubling, because he could be construed as firing the deputies on the basis that they MIGHT have been expressing political disloyalty, which would have an even greater chilling effect. Another question might be whether employment by the Sheriff is more akin to a political appointment or to being a member of a regular police force. Elected representatives generally get to hire their staffs based on past support and loyalty as well as qualifications. On the other hand, police chiefs are also sometimes elected officials, and it would be troubling if a new Chief fired half of the police force after being elected. Perhaps the reason it seems more natural for a Sheriff to do the same with his deputies is that, probably in part because of entertainment like ‘Smokey and the Bandit’, we associate the Sheriff’s office with an old boy’s club, which it should not be.

By Thomas on 2012 08 29, 2:08 pm CDT

I am both a plaintiffs’ civil rights attorney and a Federalist Society member (I guess it’s the libertarian, anti-authoritarian streak in me that resolves this apparent tension).  Does anybody see any reason at all why we should have the doctrine of qualified immunity?  The rationale, that government actors should not have to guess at their own peril whether the actions they take will later result in civil liability, sounds good on the surface, but it rests on two legal fictions.  The first is that a police officer or other government employee will have to defend the action and pay the judgment out of his or her own pocket.  Yet it seems to be the universal practice that these defendants are defended and indemnified at government expense.  The second is that officers sit around reading the advance sheets of the Supreme Court Reporter and Fed Third, something even we lawyers don’t do.  And now we have precedent that allows courts to reach the “clearly established” part of the inquiry without even determining if a “right” exists, which means that in some areas, the only way to get law clearly established is on a criminal suppression motion, not in a 1983 suit.  Worse, even if the plaintiff wins on QI in the trial court, the defendant gets an interlocutory appeal as of right on that issue, because the immunity is said to not just be from liability, but from the burdens of litigation itself (there goes another year down the appellate rabbit hole).  In sum, I think qualified immunity is a sham doctrine designed to frustrate the successful assertion of constitutional rights in 1983 actions and make it uneconomic for lawyers to take plaintiffs’ cases.  Does anybody have a persuasive argument against my position (yes, I know a lot of 1983 cases are garbage, but I am looking for a substantive argument).

By Anon 7 on 2012 08 29, 2:29 pm CDT

Is this a classic free speech case, or does it fall more properly under the Elrod-Branti-Rutan line of cases that protects nonpolicymaking public employees from adverse employment action on account of their political affiliation?

By Anon 7 on 2012 08 29, 2:35 pm CDT

@Anon

My biggest issue with QI is in conjuction with the exclusionary rule and Good Faith Exception. Those that argue we should get rid of the exclusionary rule because it isn’t in the constitution emphasize that the defendant has other remedies like suing the government agents. But then these same people make QI almost impenetrable closing off that avenue as well.

By Matt on 2012 08 29, 2:54 pm CDT

#10 (Matt).  Yes, exactly.  I came to law school with a very conservative political agenda that railed against the criminal procedure rulings of the Warren Court (you know, the ones that were letting huge numbers of criminals go free “on a technicality”).  When we discussed the exclusionary rule, I immediately bought into the idea that there was no need for it because a wronged defendant could sue the police (a fanciful notion when the Supreme Court incorporated the ER, given the then-state of 1983 law).  Years of experience taught me two things: (1) the police incorporated the crim-pro rulings into their regular practice and very few defendants actually walked; and (2) QI has been increasingly been made into a fortress against any police liability, making lawsuits often impractical to bring and uneconomic for a plaintiffs’ lawyer to take.

By Anon 7 on 2012 08 29, 3:31 pm CDT

Ridiculous decision. Of course clicking a “like” key is protected speech. I’m amazed that the issue is even considered debatable.

By Mike Appleton on 2012 08 29, 3:54 pm CDT

I’m not one for broadly expanding “speech” to include all types of conduct.  But if this isn’t speech, what is?  Aren’t the plaintiffs alleging they were retaliated against precisely because the sheriff didn’t like their decision to like his opponent?  There are absolutely no time/place/manner implications here, no collateral consequences or damage to third persons whatsoever, other than the content of the message.  It’s not even a close call.  Purely an expression of a person’s political preference, i.e., protected speech.

By rgardner on 2012 08 29, 3:59 pm CDT

The decision is wrong. If the ‘like’ was meaningful enough to impel the sheriff to fire the employee, then it was meaningful enough to be protected.

Whether the system in the state requires political loyalty to the incumbent sheriff, I don’t know. I would have thought that might be problematic under the First Amendment too.

The wrongness of the decision does not show that term limits are needed for federal judges, it shows that appeal courts are needed. Fortunately, there are some…

By John G on 2012 08 29, 4:01 pm CDT

One shouldn’t lose sight of the fact that a judge can make an incorrect decision.  Perhaps this judge, like many, is uncomfortable and unfamiliar with, social media.  It would seem that the analysis is somewhat illogical.  The appeals court will have an opportunity to make the correct decision, if in fact they determine that this was an incorrect decision.

By Kathleen on 2012 08 29, 4:13 pm CDT

#14:  “Whether the system in the state requires political loyalty to the incumbent sheriff, I don’t know. I would have thought that might be problematic under the First Amendment too.”  That’s what I was referring to under the Elrod line of cases, which essentially abolished party patronage jobs in government, save for a handful of policymaking employees.  This case sounds like a way for the elected sheriff to ensure his deputies are personally and politically loyal to him, which in the case of most employees is not a lawful objective.

I would term-limit judges for other reasons.  While I don’t want them politically beholden or afraid of making the “right” decisions for fear of removal, life tenure tends to turn appointed judges into (self-) anointed philosopher-kings with a Jehovah complex.  Much as I hate to lose the talents of some of the great article III judges we’ve had on the bench for a long time, I think it would be better to make the commission good for ten years, with no possibility of reappointment and no eligibility for elevation until five years off the bench.

By Anon 7 on 2012 08 29, 4:46 pm CDT

#15: I suspect you are right about social media.  When I was clerking two decades ago, my judge didn’t even know how to turn on his computer, until one year we clerks taught him.  Obviously, he would have been completely tone-deaf to any case involving PC technology.  Likewise, I do not have a Facebook or Twitter account (don’t want them), and none of my friends and colleagues in my age cohort have them, as far as I know.  (Who would want to follow me on Twitter, anyway?)  All I know is what I see in the media and my spouse (who is on FB) tells me.  The judge in this case was probably in the same situation.  But so what?  It is the job of counsel to educate any judge (who except on the Federal Circuit is a generalist) about the technology at issue and its implications.  Failure to do so is called poor advocacy.  I don’t care what the technology is.

By Anon 7 on 2012 08 29, 4:53 pm CDT

#14 (John G) is dead on.  The Question should not be how significant the speech was, but whether the alleged speech triggered the retaliation. 

It would be an absurd result if the employee who publicly supports a candidate by sending emails, posting signs, and shouts support from a blowhorn is protected while the employee who merely clicks “like” on the (Obamab/Romney) website can be terminated. 

If one can get fired for “liking” a losing Sheriff’s candidate, the Hampton Virginia jails must be packed with the more serious offenders.  Former candidate Adams had better leave before he faces capital candidacy charges.

By Charles Victor Szasz on 2012 08 29, 5:00 pm CDT

So wait - money can be political speech, but a thumbs-up can’t?

By Netochka Nezvanova on 2012 08 29, 5:32 pm CDT

@ #18: “It would be an absurd result if the employee who publicly supports a candidate by sending emails, posting signs, and shouts support from a blowhorn is protected while the employee who merely clicks “like” on the (Obamab/Romney) website can be terminated.”

Once we start allowing employee firings based on Facebook support of an apponent, it’s a short slide down a slippery slope until we allow elected officials to affirmatively require that employees support a given candidate’s election bid as a condition of employment.  In the present case “[t]he workers claimed that Roberts used employees to back his re-election efforts, manage his political activities, and sell and buy tickets to campaign fundraisers, the decision said.” 

As to the “loyalty” argument, most civil service exempt employees (political appointees) work with the expectation that their job lasts only as long as their boss remains in office.  If they choose to act against their own self-interest by supporting their boss’ opponent, they should be allowed to do so without fear of retailation.

By Esq. on 2012 08 29, 6:50 pm CDT

“As to the “loyalty” argument, most civil service exempt employees (political appointees) work with the expectation that their job lasts only as long as their boss remains in office.  If they choose to act against their own self-interest by supporting their boss’ opponent, they should be allowed to do so without fear of retailation.”

REALLY?  In what political universe?  Doesn’t an elected or appointed official have the right to demand that his key policymaking team remains loyal?  What possible policy reason could there be to allow a political appointee to undermine and sabotage his boss (or administration policy) and expect to keep his job?  When you work in an administration (as opposed to “for the government”), you either publicly support that administration or you resign.  At worst, you keep quiet if you disagree, or you share that disagreement only in close personal circles.  How hard is that?  Political appointments are not civil service.  It’s not like you have a property interest in the job.

By Anon 7 on 2012 08 29, 7:25 pm CDT

Oh no.  What am I going to do with all my old “I Like Ike” buttons?

By Randy on 2012 08 29, 9:47 pm CDT

I think the people quoted in support of the judge’s decision have embarrassed themselves.
If that’s the best they can come up with, the decision should somehow self-destruct ASAP without even requiring briefing. 

The employees needed no expectation that their photos would appear on the Liked guy’s page; they only needed to expect that he’d get visibly a bit more Liked if they clicked.
The employees owed no duty of political loyalty to their boss; they were hired as deputies and not policymakers or executives with any kind of discretion. 
Someone should say the magic word “ministerial” and see if arguments vanish in a puff of smoke.

By Avon on 2012 08 30, 12:37 am CDT

I’m holding my breath….

By Tom Youngjohn on 2012 08 30, 4:43 am CDT

Whether it’s free speech or not is a red herring.  We should go back to the approach of Oliver Wendell Holmes, who noted in McAuliffe v. New Bedford:  “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

By logos on 2012 08 30, 7:43 pm CDT

@ #21: “Doesn’t an elected or appointed official have the right to demand that his key policymaking team remains loyal?”

Not based on some of the self-destructing disasters occupying office these days, particularly those who have either been prosecuted or resigned in lieu of prosecution.

By Esq. on 2012 08 30, 8:11 pm CDT

I don’t see how simply being hired by a politician in office makes one a “political appointee” if one’s duties are purely ministerial.  Small governments don’t isolate the “civil service” from elected administrators.  I certainly don’t see how a deputy cop is on a “key policymaking team.”  And that’s regardless of whether or not the elected administrator is incompetent, corrupt, or another “disaster.”

@25 logos, Oliver Wendell Holmes’ approach is utterly inconsistent, at least nowadays, with the law.  And I, for one, am glad of it.  Being able to actually exercise a First Amendment right, as opposed to just having it in theory but forfeiting it in practice, is increasingly essential in our modern world.

By Avon on 2012 08 31, 3:04 am CDT

For the record, I was not suggesting that a deputy sheriff is necessarily (or isn’t) a policymaking employee, I agree that ministerial employees should be protected, and I think Holmes’ view is anachronistic and bad policy. But this is an area where each case has to be evaluated on its own facts, being careful not to elevate form over substance.  A patrol deputy is almost certainly ministerial, but an undersheriff or deputy in charge of the county jail may be a policymaking employee, depending on the duties and discretion delegated by the elected official.

By Anon 7 on 2012 08 31, 12:58 pm CDT

Political loyalty should not be the basis of continued employment in law enforcement or in any job other than political campaigning.  How did we get to this point in this country, where we would really be having a conversation about how someone’s political opinion could possibly be a reason for a person’s loss of employment?  This individual is not representing the sheriff, he is representing the town or county or city for which he works.  Furthermore, if money is speech than clicking “Like” is also speech.

By Joan Slezak- Fritz on 2012 08 31, 3:56 pm CDT

Well, it’s not so much that “money is speech” as much as the Supreme Court’s wish that those without money should not have the same voice as those who do.

By Tom Youngjohn on 2012 08 31, 4:26 pm CDT

they are not “liking” the page not to have their opinion known because (to their knowledge) it is still kept secret and they are unaware that their pics will b posted on his page, they were not expressing an opinion.

By nancy on 2012 09 06, 3:21 pm CDT

Clearly someone thought that the “like” button was political speech, or the plaintiffs would never have been fired…. And isn’t it that very sort of retaliatory conduct that is sought to be deterred by the First Amendment’s protection of speech?  To avoid the of chilling political discourse that results from fear of retribution from an angry majority or tyrannical minority?

By Marie on 2012 09 21, 12:39 pm CDT

I’m with her.

By Tom Youngjohn on 2012 09 21, 6:09 pm CDT

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