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U.S. case focuses on right to 'like'

Is Facebook approval protected free speech?

By: Justin Jouvenal

Posted: 08/9/2012 1:00 AM | Comments: 0

Daniel Ray Carter Jr. logged on to Facebook and did what millions do each day: He "liked" a page by clicking the site's thumbs-up icon. The problem was the page was for a candidate who was challenging his boss, the sheriff of Hampton, Va.

That simple mouse click, Carter says, caused the sheriff to fire him from his job as a deputy and put him at the centre of an emerging U.S. First Amendment debate over the ubiquitous digital seal of approval: Is liking something on Facebook protected free speech?

Carter filed a lawsuit claiming his First Amendment rights had been violated, and his case has reached the U.S. Court of Appeals for the Fourth Circuit. This week, Facebook and the American Civil Liberties Union filed briefs supporting what they say is Carter's constitutional right to express his opinion.

A lower court ruled "liking" a page does not warrant protection because it does not involve "actual statements." If the ruling is upheld, the ACLU and others worry, a host of web-based mouse-click actions, such as re-tweeting (hitting a button to post someone else's tweet on your Twitter account), won't be protected as free speech.

"We think it's important as new technologies emerge... that the First Amendment is interpreted to protect those new ways of communicating," said Rebecca K. Glenberg, legal director of the ACLU of Virginia. "Pressing a 'like' button is analogous to other forms of speech, such as putting a button on your shirt with a candidate's name on it."

Facebook's like button appears next to different types of content on the site, from friends' photos to an organization's page to news articles. When someone clicks the button, an announcement is posted on his or her profile saying the user likes that piece of content. The like is usually displayed to the user's Facebook friends as well.

Other cases have brought social media in the workplace to the courts.

In April, the Marine Corps said it would discharge a sergeant who criticized U.S. President Barack Obama on his Facebook page. Last fall, the National Labor Relations Board ruled a New York non-profit illegally fired five workers who criticized a colleague on the site.

Carter's troubles began in the summer of 2009, when Hampton Sheriff B.J. Roberts was running for re-election, according to the lawsuit filed in Newport News, Va., in March 2011. Roberts learned some of his employees, including Carter, were actively supporting another high-ranking Sheriff's Office official in the election.

When Roberts learned of the campaigning on Facebook, he became "incensed" and called a meeting of employees, according to the lawsuit. He allegedly told them he would be sheriff for "as long as I want it."

After the meeting, the lawsuit says, Roberts told Carter: "You made your bed, now you're going to lie in it -- after the election you're gone."

About a month after Roberts was re-elected, Carter and five other employees who supported Adams or did not actively campaign for Roberts were fired, according to the lawsuit. The other employees are also parties in the lawsuit.

In filings in response to the suit, Roberts' attorney disputes Carter's version of events and says the firings were not politically motivated.

None of the parties could be reached for comment.

Facebook says in its filings that likes are the "21st-century equivalent of a front-yard campaign sign."

-- The Washington Post

Republished from the Winnipeg Free Press print edition August 9, 2012 A12

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