A federal judge in Virginia recently held that “liking” a Facebook post is not sufficiently expressive to warrant First Amendment protection. One of the plaintiffs in Bobby Bland et al. v. B.J. Roberts alleged he lost his job with a sheriff’s department for liking a Facebook page belonging to the sheriff’s political opponent and characterized the “like” as a “statement of support”. The court disagreed
[I]n cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record . . . Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection.
Some might argue that “liking” a political candidate’s Facebook page is akin to stating “I like the candidate.” That statement arguably could qualify for Constitutional protection. On the other hand, one might like a candidate’s Facebook page merely because they like the pictures or design, which may not qualify as matters of public concern (though courts in privacy cases have implied that anything on a public figure’s social media site is inherently a matter of public concern, particularly when the site is popular). Anyone who has viewed Facebook on a touchscreen phone knows how easy it is to accidentally click “like”– usually on a post announcing some sort of sad news and leaving the liker searching for an elusive “unlike” button. Perhaps constitutional protection for re-tweeting – where the user actually republishes a Tweet – would be clearer, even though it is similarly accomplished by a “click of a button.”
The court does not appear to have considered whether the “like”, even if not expressive, might invoke the “freedom of association” that courts have read into the First Amendment. That principle, however, has generally been used to block attempts to force members of political organizations to identify themselves, and, as all Facebook users should know by now, there is no privacy when posting publicly.
In a similar case, a Library of Congress employee, Peter TerVeer, has reportedly filed a claim with that agency’s internal equal employment opportunity office contending that he lost his job after liking a Facebook page called “Two Dads” for same-sex parents. He claims he then began receiving emails from his supervisor “educating him on hell and that it awaited him for being a homosexual,” and received an uncalled-for negative performance review followed by verbal abuse in front of coworkers. He was officially fired for missing work-time but claims that officials allowed him disability time off, pursuant to a doctor’s order, due to the distress caused by the ordeal.
Reports indicate that TerVeer’s claim alleges discrimination on the basis of his gender and religion (federal anti-discrimination laws do not include protection for sexual orientation). These claims are not based on TerVeer’s specific statements but on his boss’s awareness that he is a member of a protected class. He might have a stronger First Amendment case than the Plaintiff in Bland, though, since he liked an organizational page with a specific purpose – and one surely within the realm of public concern given recent events – rather than an individual’s page with, presumably, a combination of political and non-political content. A holding that “liking” can be expressive would not be unprecedented. The SEC believes that inviting public to “like” a financial advisor’s bio could be viewed as a soliciting testimonials prohibited by applicable rules. In cases involving private employees, the NLRB has filed complaints charging employers with retaliating against employees engaged in concerted protected activity, e.g., using social media to complain to each other about working conditions, and a “like” click by a coworker could convert an isolated complaint into “concerted activity”.