by Alicia Nealon, Staff Writer
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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.
