11 October 2012

What's Not to Like?

by Alicia Nealon, Staff Writer

We are the information-sharing generation. The Judicial   Conference of the United States has characterized the “explosion in social media [and] social networking” as “[t]he latest chapter in the evolution of information sharing and online activities.” While social media opens new platforms for communication, it creates new concerns and complications for legal community. 
With over 900 million users, Facebook is probably the best-known example of social networking, and it is the leading social networking site. Facebook users can post comments on the content of their friends’ posts or uploads and can also “like” certain postings or stories, ultimately giving the post a thumbs-up. While a common part of everyday life for Facebook users, these features have befuddled legal community. Courts are grabbling with how comments, posts, walls and likes fit within the First Amendment framework and to what extent fall within its privileges. 

A federal judge in Virginia recently addressed the issue of whether “liking” a Facebook page or particular post would constitute protected free speech.  In his decision in Bland v. Roberts, Judge Raymond A. Jackson of the Eastern District of Virginia decided that he didn't like the "like" button and held that "merely 'liking' a Facebook page is insufficient speech to merit constitutional protection." 

The case involved claims of retaliation brought by two former deputies against the sheriff of the City of Hampton, Va.  The deputies alleged that the sheriff violated their First Amendment rights when he fired them for supposedly supporting his opposing candidate in the sheriff re-election by liking the other candidate's Facebook page. According to the former deputies, after learning that they had pushed the "like" button on his opposing candidate's page, the sheriff called a meeting in which he informed his employees that they should get on the "long train" with him rather than riding the "short train" with his opponent. Following his re-election, the sheriff chose to remove the employees. In turn, they contended that he retaliated against them for their protected political speech. 

Among their complaints, the deputies argued that merely pressing a Facebook "like" button was speech protected by the First Amendment. But Jackson contrasted the deputies clicking the button with other cases where individuals were terminated and/or disciplined for posts and comments on social media sites. "In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed in the record," Jackson said. “No such statements exist in this case." 

Jackson's thumbs-down decision for Facebook "likes" under the First Amendment has left many puzzled. It begs the question, how can a bumper sticker or a black armband be considered protected free speech, but thumbs-up cannot be?  In today's modern world of cyberspace, where text-speak, smartphones and social media profiles define one's identity, the context of the First Amendment has changed. The mode of speech continues to evolve as our generation engages with increasing frequency in communication over cyberspace. Our grandparents' world of campaign buttons has been ushered out by the contemporary generation's life of social media blitz and glitz campaigns. 

As Jackson's decision demonstrates, however, the implications of this evolution have been slow to percolate through the legal field.  While Jackson's decision may have been legally sound within the court's current understanding of the First Amendment, it highlights the need for the legal community to inform itself on the expanding advances of technology, as well as illustrates the necessity for the courts to approach these cases with the understanding of how information-sharing revolution of social media has changed the way in which today's society views its forms of expression.