Business Workshop: Free speech, Facebook and protected clicks

February 16, 2014 8:21 PM Share with others:

Is clicking the "like" button on Facebook a form of free speech protected by the First Amendment?

That was the issue at stake in Bland v. Roberts, in which six former employees of the Hampton, Va., sheriff's office sued the sheriff for wrongful discharge. The employees alleged that the sheriff fired them as retaliation for their support of his opponent's political campaign.

The support that one of the former employees gave was to click "like" on the opponent's Facebook page.

The lower court dismissed the lawsuit, saying that merely clicking a button was not the equivalent of expressing an opinion that would be considered protected free speech. The court felt that to constitute free speech, the employee would have had to take much more substantive actions. The employees appealed, backed by briefs from both Facebook and the American Civil Liberties Union.

And the appeals court ruled in favor of the employees and reinstated the lawsuit.

In making the decision, the appeals court applied the standards used for older forms of communications, noting that clicking the "like button" leads to a published statement that is "pure speech."

The appeals court argued that there was no constitutional difference between hitting the "like" button and typing a message of support on a computer keyboard, which would be protected speech.

The case continues the trend of courts determining that the free speech principles of old media apply to new media. And the ruling demonstrates once again that employers should tread lightly before taking punitive actions against employees based on their activities on social media sites.

-- Beth Slagle, Meyer, Unkovic & Scott, bas@muslaw.com

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Business Workshop: Free speech, Facebook and protected clicks