Facebook “Likes” Aren’t Speech Protected By the First Amendment–Bland v. Roberts
[Post by Venkat Balasubramani with comments from Eric]
Bland v. Roberts, 2012 US Dist. Lexis 57530, 4:11cv45 (E.D. Va.; Apr. 24, 2012)
Bland and his cohorts worked in the Hampton Sheriff’s Office, under B.J. Roberts. Roberts ran for re-election against Jim Adams, and the plaintiffs were lukewarm in their support of Roberts. In fact, three of the plaintiffs went so far as to “like” Adams’ Facebook page. Roberts won the election, and he decided to not retain the plaintiffs. He justified the terminations on cost-cutting and budgeting grounds, but plaintiffs argued that their termination violated their First Amendment rights. The court grants Roberts’ motion for summary judgment.
Plaintiffs alleged they engaged in a variety of protected activities, such as placing a bumper sticker on one of their cars and attending an Adams-sponsored cookout, but the court says there is no evidence that Roberts was aware of these activities. The one activity that Roberts knew about was “the presence” of two of the plaintiffs on his opponent’s Facebook page. However, with respect to this activity, the court says that plaintiffs did not point to any specific statements they made on Adams’ Facebook page. One plaintiff claimed he posted a comment to Adams’ page, but he later took it down, and the comment wasn’t presented to the court. Plaintiffs “liked” Adams’ Facebook page, and there was no dispute that Roberts was aware of this, but the court says this is insufficient:
[Roberts’] knowledge of the posts only becomes relevant if the court finds the activity of liking a Facebook page to be constitutionally protected. It is the court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.
[emphasis added; citing Mattingly v. Milligan, mentioned in Eric’s quick links here] The court declines to “infer the actual content of [plaintiff’s] posts from one click of a button on Adams’s Facebook page.”
The court also says that plaintiffs don’t adequately state a freedom of association claim. The court cites to the standards for when it’s permissible to terminate public employees for their political affiliations, but it doesn’t engage in any analysis because, in the court’s view, plaintiffs have not produced any evidence of association with Adams’ campaign that Roberts knew about–and any Facebook association is insufficient:
[a]side from the Sheriff’s admission that he knew [two of the plaintiffs] had been on Adams’s Facebook page, there is little to no evidence that rises to the level of a genuine dispute about whether the Sheriff actually know about the Plaintiffs’ support of Adams.
Even assuming plaintiffs could point to statements or association that the Sheriff knew about and that played a part in his decision to terminate plaintiffs, the court says Roberts is protected by qualified immunity. The Sheriff had not “transgressed [any] bright lines.”
The court’s conclusion on qualified immunity may or may not be defensible, but the court veered off course in concluding that a Facebook like is not speech. Maybe the court slept through Arab Spring and the many other instances of online activism in the past five years. Maybe the court is unaware of the robust body of First Amendment precedent which says that protection for expression is not limited to just actual words. Hello, Tinker (black arm bands) and Texas v. Johnson (flag burning)! More likely, as Eric notes in his comments below, the practical implications of a “like” threw the court for a loop.
It’s easy to dismiss Facebook “likes” as one of those mindless knee-jerk online activities we all routinely engage in that have little or no societal value. Courts can discount Facebook friendships in other contexts (see, e.g., Quickly v. Karkus, discussed here: “It’s Officially Legal: Facebook Friends Don’t Count”), but it’s well off the mark to say in this case that “likes” were not speech for First Amendment purposes. As menial as a Facebook like may be in the overall scheme of life, it’s an announcement to your Facebook friends that you support something, whether it’s a cause, a candidate, a company, or another person. A like also promotes a particular page or newsfeed to your friends, which sounds like quintessential expressive activity. [See Eric’s comments below for various potential implications of a Facebook like.]
While I remain leery of Facebook’s “like” ecosystem, I “dislike” this ruling.
Oh man, the technological implications of social media sure does baffle the judicial system. What does it mean to “friend” someone? What does it mean to “like” something? Most judges seem to want to curl up into a ball when posed with such thorny questions. Could you imagine a judge trying to grok what a Facebook “poke” means? [FWIW, a Westlaw ALLCASES search for “facebook /s poke” yields no results…yet.]
From my perspective, the judicial confusion about “likes” partially stems from the fact that the single technological interaction of “liking” something has multiple effects. When John Doe “likes” something on Facebook, it means:
1) When other people visit that content item/page, John Doe publicly appears as someone who “likes” it.
2) In addition, some folks are privately notified that John Doe “likes” the item/page, such as the person who posted the item/page as well as other people who are referenced on the page.
3) Depending on John Doe’s privacy settings, John Doe’s “like” may be communicated to his friends via his newsfeed.
4) If John Doe likes a business/interest, it may appear on John Doe’s info/profile page.
5) If John Doe likes a business or ad, the business or advertiser may be able to buy an ad that redisplays John Doe’s “like” to John Doe’s friends.
6) John Doe may be subscribed to further content regarding the thing he likes.
7) Under the hood, Facebook treats the “like” as an affinity that modifies Facebook’s perception of the relationship between liker and likee (i.e., it changes the social graph).
I’m sure there are other technological implications of “liking” something on Facebook; these are only the implications that occur off the top of my head. Perhaps Facebook’s system is too complicated for lay folks to understand. The fact I can’t easily enumerate the implications of a “like” is disconcerting. Personally, I think Facebook should disaggregate these implications so that a single action doesn’t have so many simultaneous implications. At minimum, I am much less likely to “like” things on Facebook because there is so much import of such a simple action, and I definitely don’t “like” any businesses because I think Facebook’s Sponsored Stories program is not in either my or my friends’ best interests. I explain these points in more detail in my post on Fraley v. Facebook.
I “like” Venkat’s assessment above that “liking” on Facebook is First Amendment-protected speech. Looking at the complete list of implications above, collectively there is no question about that. But even if we focus only on implication #1, I don’t even see the First Amendment issue as a close question. Listing a person’s name as an “endorser” of a political candidate is core First Amendment activity. That’s exactly what the “likes” did here. Perhaps, as Venkat indicates, we might otherwise excuse Roberts’ firings through qualified immunity, or in fact maybe the budget cutting wasn’t pretextual, but the judge’s techno-confusion prevented it from reaching those questions squarely. This looks like an excellent case for an appeal.
UPDATE: On an email list, John Rothchild called our attention to Three D, LLC and Sanzone, Case No. 34-CA-12915 (NLRB ALJ Jan. 3, 2012):
Spinella’s selecting the “Like” option on LaFrance’s Facebook account constituted participation in the discussion that was sufficiently meaningful as to rise to the level of concerted activity. Spinella’s selecting the “Like” option, so that the words “Vincent VinnyCenz Spinella…like[s] this” appeared on the account, constituted, in the context of Facebook communications, an assent to the comments being made, and a meaningful contribution to the discussion….I find therefore that Spinella’s selecting the “Like” option, in the context of the Facebook conversation, constituted concerted activity as well.