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”……
I suspect there may be another argument to flesh out here.
The original post was free speech.
The likes, however, may represent instead an exercise of the right of association.
“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” — NAACP v. Alabama ex rel. Patterson
Is Facebook an assembly? Specifically, is “liking” a statement by another an act of ad-hoc group association?
Just throwing it out against the wall.
Dalmation90
Very interesting perspective.
It saddles up next to another issue that I avoided in the above posting but can also be an issue in a collective bargaining environment: the right of employees to engage in concerted activities.
Just throwining against the wall… well, I think it will stick.
I wanted to click “like” to your post now I am unsure 🙂
I am not sure why clicking “like” and the controversy surrounding that small act constitutes an abridgement of an individuals 1st Amendment Rights. There has been only a few cases clarifying the “like” response and it looks like the judiciary will continue to make those calls, like in a baseball game of you’re either “out” or you’re “safe.” Have we gone to far in deep diving into the ability of “like” or “not like” something based on the whim of the Chief or others who want to make a point. It seems a bit of insecurity on the part of leadership and the attempt to intimidate free speech. Let’s be fair about this and ask Facebook to place a “not like” button next to the “like” so there is equal power in both opinions. What we need is George Carlin to analyze this conundrum. Now I feel empowered to click “like” to this posting.
Great post, Curt. Thanks for tackling the issue.
Times are getting interesting on this stuff.
John
I am going to be terribly disappointed if you don’t click “Like”.
There is another use for the word “Like” on Facebook, or at least there used to be. Clicking “Like” allowed a user to keep updated on a comment or story without having to continually hunt it down. Basically it is/was like clicking “Follow” and the user got notified of updated comments.
Jim
That is another great point – adding even more ambiguity to what a “Like” means.
OK, I clicked “like”
Thank you counsellor!!!
Much appreciated
I use the like feature often just to let friends know I have read there post, nothing more, nothing less
Bill
Interesting point. So if you “Liked” a friend’s neo-nazi post – you would not necessarily be “endorsing” what he says… but some folks may interprete it as an endorsement… and if one of those folks “reports” you it is possible you could be the subject of the next major headline on this topic (assuming you are a public employee that is)!
In the case of the 3 firefighter and cop you said “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”, Can the firefighter be speaking as a concerned citizen even though he ran the call? If not do we lose the right to speak on every topic for every call we run? (if i’m running 10-20 runs a day that is a lot of topics i can’t discuss) Lastly you mentioned the pickering test, if their comments or “likes” didn’t violate any law or contractual agreement limiting their social media interactions then how does it interfere with the employers interest?
thanks for the write up – very interesting
John K. Murphy
In response to the “unlike” button, if Facebook adds that button they may as well add the following… a “No Comment” button. Then everyone will be recognized, they either agree or disagree or they are just fence sitters. Either way, everyone has an option for their opinion and no more questioning what the intent was. 🙂
I am definitely going to “like” this post!
If I see (read) something, on FaceBook or any other social media site, that I find interesting, agree with, like, etc…I will hit the “like” button. I will identify myself with my real name, not an alias (my name is right out there for everyone to see). I feel it is my God given right, protected by The Constitution, to express my opinions in such a fashion. Of course, at this point in life, I really don’t care who I piss off with my opinions. I have found through the years, that someone, somewhere, will always have issue with what you believe/say/post/like/etc. What are you going to do? Fire me? I don’t think so…
… What Face Book needs is another status option. Maybe it should be called “Acknowledge”, so readers could Acknowledge reading a post without “Liking” or agreeing with what was said ! … If an Amber Alert were posted on Face Book, who would want to “Like” an amber alert? …
Afoster
Great question – but way beyond what I can answer here but let me give you some ideas to chew on.
The entire area of public employees First Amendment rights is a mess. Judges can’t agree on where the boundaries are, law professors can’t agree – yet somehow the rest of us are supposed to be able to know what we can and cannot say.
I have said it before but the current state of the law regarding the First Amendment is a disservice to us all because in so many cases it’s just not clear when you have protection and when you don’t.
Fire chiefs write policies to help guide their personnel only to see courts strike them down as being a “prior restraint” … a violation of the First Amendment. Then firefighters – without clear guidance from a policy – post things on line that in the wisdom of hindsight may be in poor taste/offensive and get fired. Ironically the same courts that struck down the policy, uphold the firing saying the comments are over the First Amendment line.
I apologize for the rant – but it is frustrating when the same scenario plays itself out over and over again.
To address your question: “Can the firefighter be speaking as a concerned citizen even though he ran the call” – let me show you just how convoluted the analysis is. First Amendment wise – he can discuss it so long as he is speaking as a private citizen, it is a matter of public concern, and his right to discuss it outweighs the concerns of the department in keeping him quiet. Nice… concise… easy to understand, right?
Then there is the issue of what the department rules allow or prohibit. Does the department prohibit members from publically discussing incident related information?… If so the member might be disciplined unless the rule itself is illegal as being overbroad (see above). Then there’s the issue of whether the release violates patient confidentiality or some other duty we own to the victim. Does it compromise a matter that is under investigation (eg cause and origin, responsibility/liability, presence of drugs or illegal activity in the structure, etc.)?
Then there is the question of “how” the firefighter discusses the incident. Does he discuss it factually – “This is what happened…” or is there editorializing… does he lecture, ridicule, or perhaps insult the building owner, victim, or a certain segment of the community… Is the release done in such an outrageous way that it constitutes “conduct unbecoming”?
Hopefully you can start to see the magnitude of the problem. There are issues associated with discussing/releasing information, and then there are issues associated with the way the information is discussed/released.
Your last point – about the employer’s interest – is another minefield. A fire department (as an employer) has a legitimate interest in ensuring the department functions smoothly and the job get’s done. That can be compromised if employees are free to run to the newspaper every time they don’t get their way (eg. I wanted to work overtime on Tuesday and got “screwed” out of it having to work Wednesday, I wanted a Christmas vacation but got “screwed” out of it, I put in for new gloves it took 4 hours for the “blows” at HQ to issue them, etc. etc.). The department also has an interest in making sure employees do not jeopardize or ruin the department’s reputation, relationships with neighboring departments, etc. etc. Then there are legitimate internal concerns that employees can work together and relationships are not damaged by offensive statements, unfounded allegations, or the release of matters that should be confidential (eg. an officer should not be free to discuss on Facebook the annual review he gave a subordinate).
On the other hand an employer cannot restrict employees from reporting wrongdoing, bringing matters of public concern to the attention of the public…
These are just some of the issues in this complex area.
Alan
I’m with you – I really don’t care either – but not everyone has that kind of freedom. Guys are getting fired – guys who like you believe they have a “God given right”… or at least a Constitutional right… to say what’s on their mind.
I suppose in some respects they do – they just don’t have a right to remain employed afterward.
Kurt,
After reading these posts I have to wonder if we (the Fire Service) isn’t going about this the wrong way. Instead of trying to define the legal boundaries, maybe the emphasis should be on educating all members (yes that means chef officers too) about internet comunications.
For starters,what does the First Amendment really mean and what does “Freedom of Speech” really mean. Second, that NOTHING you say on the internet is really private, especailly on any of the social networks. For example, how many Facebook members realize the following scenario:
FF Warm N. Fuzzy types a post about a call he went on. His friend Sam types a comment. Now all of Sam’s friends see his comment as well as Fuzzy’s post. Now Sue, a friend of Sam, clicks “like” on Sam’s comment and so now all of her friends are in on the conversation. All well and good except the Sue also has the Mayor, Fire Chief, relative of the victim, etc. on her friends list. Then, of course, there is the word-of-mouth passing along of information that is posted to those who aren’t are the friends list.
In short, training is the issue. And instead of trying to learn how to apply a vague and convoluted set of laws, let’s go back to basics of professional conduct with an understanding of how that conduct fits into the open world of the internet.
Just a thought.
Sound approach, Jim.
Except… human beings are social animals. And the youngest of us, the “kids” who are already “wired” when they enter the fire service, are social and conversational at a level and using channels that us “old farts” never dreamed of.
Has the Internet and digital media changed the very nature (and expectations) of how everyone communications? Does everyone need to take a chill pill, and relax a bit, both on the front end (restrictions) and the back end (reactions)?
Or maybe it’s the reverse. The fire service needs to work double-hard, and instill a much more… closed culture, with regard to “talking about what they do” anywhere and in any fashion outside the fire station.
Jim and Mike
I agree with both of you. Education is an absolutely critical part of the solution.
Jim – I am not sure we are going about it the wrong way by focusing on the legal concerns. The bigger problem is many departments are doing nothing – no policies, no consideration of the legal concerns, and no education. Then when a headline-creating case happens and there’s a lot of political fall out the chief wants to fire the firefighters involved.
That is not leadership.
Our training programs need to be built around the legal restrictions that apply – because if we try to tell our folks they cannot (for example) use social media, we will lose if even one of them challenges it. Policies and training all have to sync up with the law.
Personally, I can’t wait for this “Internet Fad” to be over with…
“Just because you can say it, should you say it.”
Start there, add policy, and you can’t go wrong.
I’ll have to agree with your second idea. When I came into the service, alot of time was spent on educating me about what could be talked about and where. I think this has slowly been eroded over teh years. I know that when I have adivsed firefighters about such things, I usually got the “freedom of speech” thing. Even the guys that tsught me seem to be letting things go and enforcing what was the acepted professional standard. Laziness or change in culture? I personally think it’s more of the first, it’s much easier to let things go than to confront them. Officers especially need to be able to do the hard right over the easy wrong.
Kurt,
I didn’t get that worded the way I needed to and maybe what I am thinking isn’t possible. I’m not even sure I can explain what I meant. First I’ll say that I was mainly speaking to actions taken at the company/station level.
I guess my concern is that in my early days I did what I was told, explanations were nice, but not required. Now it seems that everything has to be explained, debated and “what if’ed” to death, especially at the station level. At some point the hard line has to drawn in the sand and everyone needs to know the consequences of crossing it. As you posted earlier, (paraphrased) say what you want, just be prepared to become unemployeed if you do.
Explainations certainly helps with buy in, but sometimes there can be too much explaination. Does that make sense?
As for the rest of what you said, I agree 100%. Both management and labor leadership should be taking a much more proactive role in this. Preferably together, but if one won’t then the other should take the lead and start doing something. Sitting around and waiting for a incident to happen and then go for the knee-jerk reaction certainly doesn’t help anyone.
Jim
I keep hoping the Supreme Court is going to give us a First Amendment rule that allows leaders to more easily establish policies that can be followed rather than the way the law is now. That way we can focus on providing clear policies and guidance for our people.
The present law – applying the Pickering balancing test – is wonderful if you are a judge because you get to sit and critique what someone says and does after the fact. It is wonderful if you are a law professor because you can create these wonderful hypotheticals to dazzle your students.
But it sucks if you are a fire chief trying to keep your firefighters out of trouble PROSPECTIVELY by having a clear policy.