Cyberlaw Update: Court rules that a Facebook ‘Like’ isn’t expressive

May 2, 2012

Cyberlaw Theme Month(Editor’s Note: Technology changes so quickly nowadays that it’s sometimes hard to keep up. To help with this, Westlaw Insider will be looking at recent developments and updates in social media law and cyberlaw throughout the month of May.)

Last month, I wrote about a court ruling that “got it right” on applying the law in step with current technology.

Unfortunately, for every step forward, there are two steps back.

Speaking of which, we have Bland v. Roberts, decided last Thursday.

The case started as a retaliation suit brought by some former employees of the Hampton City Sheriff’s Office in Virginia, who claimed that they were fired in retaliation for their “exercise of their right to freedom of speech when they choose to support the current sheriff’s opponent in the election.”

Without getting too much into the legal mumbo jumbo, the controlling precedent here requires that the plaintiffs had engaged in speech, and that the sheriff was aware of that speech in making his decision to fire the plaintiffs.

This is where the Bland court “got it wrong.”

The “speech” that one of the plaintiffs claimed was protected was his Liking the sheriff’s electoral opponent’s Facebook page.

The ruling held, however, “that merely ‘Liking’ a Facebook page is insufficient speech to merit constitutional protection.”

And as if that weren’t bad enough, the court also found that, in regards to plaintiffs’ freedom of association claim, a Facebook “Like” does not constitute any kind of meaningful association with that object or cause.

So, just to break it all down into plain English, the court ruled that a plaintiff “Liking” the electoral opponent’s Facebook page did not amount to any kind of personal expression, and did not reflect any kind of political leanings.

<sigh>

Okay, so what if someone was fired for Liking “Judaism?”  Or “Socialism?” Or the “Republican Party?”

Or for Liking a status update or photo that a Facebook Friend of his or hers posted?

Seriously, a Facebook Like is far more unambiguously expressive than other forms of expression to which the Supreme Court has explicitly extended First Amendment protections (i.e. flag-burning, profane words on clothing, etc).

Santa Clara University School of Law professor Eric Goldman’s comments in the second half of this article aptly describe more fully the technological implications associated with Liking something on Facebook (though, such is probably unnecessary to anyone who regularly uses Facebook).

The worst part is that the court’s ruling ended with a fairly defensible finding of two different classes of immunities for the sheriff, so, the court could have just remained silent on the Facebook “Like” issue and skipped to the end.

Of course, it didn’t, and Goldman notes that this looks like an excellent case for appeal.

The problem is that, practically, there’s very little chance of success for these individual plaintiffs.

Yes, the judge got it wrong on the Facebook parts, but, as I said earlier, those weren’t as determinative to the ruling as were the findings of immunity.

So, even if the case were appealed, and the appeals court reversed the trial court on the parts about the Facebook Like, it’s still more likely than not that the appeals court would affirm on the immunity findings, and the result would be the same.

Although that would make the rest of us feel better, there wouldn’t be much in it for the individual plaintiffs, so why would they appeal?

Of course, if some outside advocacy groups get involved and offer support for an appeal, then such an appeal is likely.

In the meantime, we have to just hope that other courts don’t follow the example set in Bland v. Roberts.