Is Clicking Like Really Saying Anything?

I received a very timely and thought provoking question for today’s burning question: Is clicking “Like” to a Facebook post making a public statement sufficient to get someone in trouble?

I should probably start by asking – who do I represent, the accused “Liker” or the person who is upset with the fact that “Like” was clicked? But lets not go there. We will cover it straight down the middle. I’d also like to rewrite the question – because phrases such as “public statement” and “get someone in trouble” are pretty ambiguous. We will work through those too.

Before we answer the question, let’s consider the timeliness and the context of this question. Two cases in particular have raised a number of concerns in recent months. The first case involved the Hampton, Virginia sheriff who terminated several of his employee because they clicked “Like” on his opponent’s Facebook page.  

A more recent case that broke earlier this week involved Columbus, Mississippi firefighter Brad Alexander. He was apparently forced to resign over comments he posted on Facebook about the whereabouts of the mother of a 2 year old who was struck by an auto. Associated with that posting two firefighters and a police officer from Columbus (firefighters Damon Estes and Erik Minga and police officer Lance Luckey) were given 30 day suspensions for “liking” Alexander’s post.

With these cases as the background, let’s consider the answer to this seemingly simple question. To answer it, we need to recognize that there are actually several sub-questions within the question.

First Question – is clicking “Like” really the making a “public statement”? My answer is yes, most definitely. It is a statement, or more precisely an exercise of speech. It is public. Therefore clicking “Like” is a form of public speech. IMHO as a form of public speech it therefore triggers protections under the First Amendment… or at least what is left of the First Amendment these days… but that is another story. If clicking “Like” was not a form of speech it would have no First Amendment protection.

Second Question – should someone get in trouble for clicking “Like”?

That actually begs a Third Question: what exactly does it mean when someone clicks “Like”? For example, my friend’s father died recently and he posted an obituary on Facebook. Like many folks I clicked “Like”. Does that mean I like the fact that my friend’s father died?  That I liked my friend’s father? That I like my friend? That I support my friend and his family during their time of grief? That I like the prose used in the obituary?

Different people can draw different conclusions from a “Like”. Could someone be offended that I clicked “Like” for an obituary believing that I stepped over some imagined boundary of etiquette? Is that my problem, or theirs? I suppose if the offended person is my boss it becomes my problem. 

What emerges from this Third Question is that clicking “Like” can be ambiguous, to say the least. It can also mean different things to different people. Now back to the Second Question: should someone get in trouble for clicking “Like”.

As an initial matter, under the Constitution, government cannot infringe upon the First Amendment rights of citizens, including public employees. Hence, to the extent that a public employee makes a public statement (free speech) that is entitled to First Amendment protection, the employee cannot be disciplined… by his/her employer. That doesn’t prevent people (co-workers, bosses, and maybe the public) from being uphappy with what is said, but the employee cannot be disciplined or retaliated against by the governmental employer.

Is upsetting your boss and coworkers “getting someone in trouble”? If it is, then clicking “Like” can indeed get you in trouble and no amount of fancy legal arguments will help you there. However, if your definition of trouble is being formally disciplined, then whether or not you are in trouble depends on whether or not your speech has First Amendment protection.

Rather than restate what I have already written on the First Amendment, here is a link to a prior posting. Let’s just say there’s alot of ambiguity these days when it comes to applying the First Amendment in real life. In fact judges can’t even agree so I seriously doubt the rest of us will fare much better.

The short version: for a public employee to have First Amendment protection for an exercise of speech that is related to his or her employment, they must be speaking as a private citizen on a matter of public concern AND pass the God-awful Pickering Balancing Test that requires that the employee’s interests in speaking outweigh the employer’s needs to limit his/her speech. Don’t fall asleep on me now…. we’re almost done….

One of the biggest hurtles here for an employee is the “matter of public concern” test. Can clicking “Like” to a Facebook posting be considered a commentary on a “matter of public concern”? How does one prove that? Obviously it will depend in large measure upon on the nature of initial comment. It may also depend upon the intent of the “Liker” – which as we have seen can be ambiguous and may give rise to differing interpretations.

There is another little issue that has no clear answer at this point: What protections do public employees have when their speech is not work related? What happens when someone clicks “Like” to a post that has absolutely no connection to one’s employment?

Traditional First Amendment law looked upon such statements as being entitled to greater protections under the First Amendment than speech that is related to one’s employment. However, the distinction often gets blurred – particularly when someone engages in speech that calls into question their fitness to be a public employee, or insults the very people that the employee is hired to protect and serve. Let me quote from a recent Federal case so we get the lingo right: “[t]he First Amendment does not require a Government employer to sit idly by while its employees insult those they are hired to serve and protect.” Locurto v. Giuliani, 447 F.3d 159, 183 (2d Cir. 2006).

So what if a public employee clicks “Like” to a comment that has no relationship to his employment, but the comment is racially offensive?

 

To summarize this long and winding rant – the question should probably be restated as: is clicking “Like” on Facebook an exercise in free speech subject to the same protections offered by the First Amendment to other forms of speech? The simple answer would then be: Yes. Clicking “Like” puts one squarely in the same First Amendment quagmire that we all are faced with day in and day out. It’s no different.

Oh… and then there is the issue of the inadvertent “Like”……