Is Facebook ‘speech’ protected?

JUDGE RAYMOND A. JACKSON of the U.S. District Court in Newport News thinks for himself and, as a result, he is no stranger to controversy. In 2005, he took exception to the federal government’s higher penalties for those who deal crack rather than powder cocaine, citing that “ridiculous” disparity as his reason for reducing a convicted crack dealer’s sentence below the range called for in sentencing guidelines. That was a principled stand, and the Supreme Court ultimately vindicated it, upholding Judge Jackson’s decision five years ago by a 7 to 2 vote.

Judge Jackson’s latest headline-making ruling, however, seems both less justified and less likely to withstand scrutiny by higher courts. On April 24, he dismissed a lawsuit by six former employees of Hampton, Va., Sheriff B.J. Roberts, who had claimed that the sheriff had fired them because they supported his opponent in the 2009 election, which Mr. Roberts won. Among the allegations was that Mr. Roberts retaliated against deputy Daniel R. Carter Jr. because the latter had “liked” the Facebook page of candidate Jim Adams. According to Mr. Carter, this violated his constitutional rights, because clicking the “like” button is a form of expression protected by the First Amendment.

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Judge Jackson, though, saw the matter otherwise. He wrote: “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” Previous Facebook cases had involved sentences and paragraphs whose political content could easily be ascertained, Judge Jackson noted, whereas a mere “like” does not necessarily imply any such “substantive statement.” Therefore, he concluded, the case did not present an issue worthy of trial, and Mr. Roberts was entitled to win.

To be sure, Facebook and other social media are new technologies, so the relevant legal doctrine is evolving; Judge Jackson, in that sense, wrote on a blank slate. (Washington Post Co. Chairman and Chief Executive Donald Graham is a member of Facebook’s board.) No one would equate clicking “like” with, say, Martin Luther’s nailing 95 theses to the Castle Church door. It can express a range of opinion — from idle curiosity to intense support.

But it does amount to more than a one-word blurt; when Mr. Carter “liked” the campaign’s page, the slogan “Jim Adams for Hampton Sheriff” appeared on Mr. Carter’s profile page, along with a photo of Adams. It was as if Mr. Carter donned a campaign button or posted a lawn sign for all to see.

In any case, it’s far from clear that speech needs to be articulate to qualify for First Amendment protection. Under Supreme Court precedent, even silent protests like wearing an armband may qualify.

Since this case involves a government workplace, the sheriff’s actions may prove valid for other reasons. But the plaintiffs do seem to have alleged a real violation of free speech, and Judge Jackson should not have dismissed Mr. Carter’s claim without even allowing him a jury trial. As more speech and expression migrate from traditional forums to social media, the courts must ensure that the new public space remains as free as the old.

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