800 million Facebook users post more than 3 billion comments and “likes” every day. Legal observers have long predicted a faceoff as courts seek to define how employers may respond to their workers’ questionable or conflicting behavior on the social network. In determining whether an online statement gives rise to a wrongful termination claim, courts in California and around the country must decide how similar Internet activity is to other areas of protection.
One big question surrounds features like Facebook’s “like” button: to what extent does an online expression of approval constitute legally protected speech? The answer will not be an easy one but cases are beginning to progress through the court systems, albeit with inconsistent results.
In one current case, a trial court decided that a “like” does not merit First Amendment protection. The case came out of a sheriff’s decision to fire two employees for publicly approving of his rival on Facebook. Since state agencies like a sheriff’s department are subject to First Amendment restrictions on how they can respond to political speech, the employees sued.
A First Amendment argument for protection could claim that a “like” is a statement analogous to any other speech act. For example, one could argue that liking a politician’s Facebook page is no different from standing up in a crowded room and shouting a statement of approval. The sheriff department case appears to illustrate this argument fairly well: the employer fired two citizens for essentially expressing political opinions in a public (although online) forum.
Despite this analogy, courts across the country have gone different ways. In the sheriff department’s case, the judge ruled that “likes” do not receive constitutional protection because they do not really say anything. But other cases have reached different conclusions.
For now, the answer appears to be that the legal system does not yet know what the parameters are for online speech protections. Given the complex and rapidly evolving online ecosystem, legal protections in this area might lag behind technology for the foreseeable future. To illustrate other possible challenges, what if the sheriff had fired his employee for merely “friending” the other candidate?
Source: Charlotte Observer, “In Facebook court cases, high tech and free speech collide,” Michael Doyle, Sept. 7, 2012
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