Careful What You "Like" — It Could Get You Fired
Watch which PolicyMic articles you're "liking" on Facebook. Right now, in Richmond, Virginia, the U.S. Court of Appeals for the Fourth Circuit is deciding whether you can be fired based on what you've "liked."
In 2009, Danny Carter, a jailer in Hampton, Virginia, "liked" this page supporting the sheriff's rival in an upcoming election. Like displaying a yard sign or wearing a pin off duty, this is clearly an example of expressing a political opinion in a personal, non-professional manner. Unfortunately, that's not how a U.S. district court ruled last year. If the appeals court has any sense, they'll overturn that ruling, granting us all a much-needed protection.
Carter was joined by five others in the firings, which the sheriff, B.J. Roberts, denies was over their political opinion. The fact that Roberts's lawyers are choosing to argue that "likes" do not constitute free speech, rather than arguing the other supposedly valid reasons for their firing, however, casts suspicion on that denial.
The American Civil Liberties Union (ACLU) and Facebook have joined Carter in arguing for First Amendment protection of Facebook "likes;" both have submitted statements to that effect. According to Facebook's lawyers: "If Carter had stood on a street corner and announced, 'I like Jim Adams for Hampton sheriff,' there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection."
Facebook, of course, stands to lose if the 2012 ruling that "likes" are not protected speech is upheld. The publicly-held free site depends on using people's "likes" to target its users for advertising. If its members are more hesitant to "like" pages, that is a major blow to Facebook's competitive advantage in selling itself to its real customers: the advertisers.
The argument from the 2012 ruling is that a "like," as a single click, is not substantive enough to be considered speech. People can have many motives for clicking the button, or may even do so accidentally. Even if that is a valid point, how that argument supports the idea that a person can be fired simply for that possibly-accidental click is a mystery.
Moreover, the argument itself is flawed. The word "like" is present, and the "thumbs up" symbol is universally accepted in this culture to mean an expression of approval or support. Clicking that button therefore expresses, in commonly accepted language, support for a political cause. In other words, it is speech.
This issue is not isolated to the United States.
A popular fad in Australia is to subtly expose oneself in group photos, because in Australia the memes are apparently as awful and dangerous as the wildlife. One teen, a Facebook friend of Western Australia's minister of education, bragged about tricking the politician into "liking" a photo in which he was exposing himself. Now that politician is finding himself in very hot water.
Meanwhile, in Mumbai, two women were arrested after a controversial post on Facebook — one of them simply for "liking" the post. In an appeal on that arrest, the courts decided not to ban arrests over online comments, but did say that senior police officers would need to sign off on such arrests.
The Richmond courts must uphold our right to "like" what we like. Otherwise think twice about what opinions you express online. If you only have to click without typing, you'd better hope your boss agrees.