‘Like’ the First Amendment

By Bob Stewart

Employees fired by Hampton County, Virginia Sheriff B.J. Roberts allege that he did so because they “liked” a Facebook page. The page belonged to the candidate running against Roberts in the general election. Though the employment terminations took place about a month after the election that Roberts won, he denies his reasoning related to Facebook.

Six former employees sued Roberts for violating their First Amendment rights in Bland v. Roberts (857 F. Supp. 2d 599), in U.S. District Court. This case appears to be a fair battleground to determine whether or not Roberts fired the employees for expressing their support for his opponent, or as he contends, that unsatisfactory work performance and budgetary concerns were the reasons. However, Roberts moved for summary judgement on the basis that the Facebook “like” was not expression.

Judge Raymond A. Jackson granted summary judgement on that reason. Despite acknowledging Roberts did know about the Facebook “likes,” Jackson opined that a form of expression that simple does not rise to the level of Constitutional protection.

“Simply liking a Facebook page is insufficient,” Jackson wrote in his decision. “It is not the kind of substantive statement that has previously warranted constitutional protection.”

To be sure, this case is as nuanced as social media expression itself. In addition to the Sheriff’s claims that he had good reason to fire the employees, several other layers of protection exist, including the notion of state sovereignty. He also possesses “qualified immunity” according to Jackson. Government employees are immune to civil suits for their decisions as long as, “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Further, Roberts says he knows he does not have the right to fire employees for expression. In that case, the plaintiffs would have to prove that Roberts knew Facebook “liking” was constitutionally protected expression. But that is all immaterial to whether or not “liking” a Facebook page is actually protected expression.

The summary judgement is being appealed to the 4th Circuit Court of Appeals. Based on prior decisions the summary judgement here should be overturned. The Supreme Court of the United States ruled in Tinker v. Des Moines that wearing black armbands to protest the Vietnam War was protected “speech,” even though no specific message was spelled out (393 U.S. 503). The Federal Courts consider the medium of Facebook an adequate platform for protected speech. In Gresham v. City of Atlanta, the District Court ruled that a police officer’s Facebook posts are protected (10-CV-1301-RWS (N.D. Ga.; May 7, 2012)). The Supreme Court has developed a test that should apply in this case since the act of “liking” a Facebook page is conduct. The Court asks two questions. The first question is to determine whether there is intent to express a message. The second is to determine whether it is likely a witness will understand the message. The court clarified in Texas v. Johnson, a flag burning case, that the witness does not need to understand the exact message (Texas v. Johnson, 491 U.S. 397).

So first, Facebook users express something when they “like” a page or another user’s status or comment. They have read the information or at least know the content of the page before they “like” it. What the expressed message is can vary. So whether the expression would be understood is a fair question. Perhaps the user “likes” something because it is funny, poignant, or it is exactly what he would have written given the opportunity. In the case of a candidate’s page, or that of a group or business, it usually means an endorsement of the candidate or product. Other Facebook users know what that means generally. Evidence of this is that there are many companies, like  “Get-Likes.com” and “fbviro.com,” whose sole purpose is to get your Facebook page more “likes.” Businesses and political candidates pay money for this type of service. So it is fair to say that a “like” is expression that is meant to be positive toward the entity being “liked.” That means the First Amendment is implicated in Bland v. Roberts.

The 4th Circuit should overturn the summary judgement and remand the case back to the District court to hear the case on its merits. There is fair reason to believe that Roberts was ultimately justified in his actions, or at least not liable. But the court should consider the case, not throw it out on an incorrect technicality.

 

Free Speech? Twitter and Facebook Absent in Signing of Universal Free Speech Pact

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By Jord Strohl

A code of conduct to protect online free speech and privacy in restrictive countries was signed by major technology companies such as Google, Yahoo, and Microsoft. The involvement of these three power playing internet companies dates back to 2008, and they hoped that other companies would follow in their lead of a rallying moment for a core cause. Noticeably absent from the free speech pact are social media platforms such as Facebook and Twitter. All of the participating companies that signed the free speech pact are American companies; There is a void in the global initiative of advocating the protection of free speech. Although Facebook and Twitter are widely used by large audiences and activists in other countries in the Middle East and all over the world, they are not involved in this protection of free speech pact. Because free speech laws and the First Amendment only applies to the United States and are not global laws, there is a controversy on whether or not companies who have signed the free speech pact (Google, Yahoo, and Microsoft) have the adequate power and policies to even address the privacy and free speech issues. It is up to independent auditors to examine and interpret whether or not the companies adhere to government demands for user information and to decide whether they store users’ data in countries where free speech is protected. Susan Morgan, the executive director of the Global Network initiative, said that, “Recent events really show that the issues of freedom of expression and privacy are relevant to companies across the board in the technology sector, things really seem to be accelerating.” Facebook and Twitter have made a positive impact on freedom by highlighting the crucial role technology can play in the world’s most closed societies, which leaders of the initiative say makes their efforts even more important.

The code of conduct states that companies must try “to avoid or minimize the impact of government restrictions on freedom of expression” and protect user privacy when demands by government “compromise privacy in a manner inconsistent with internationally recognized laws and standards.” Although it sounds like companies must hold fast to these requirements, there is some wiggle room. Companies that abide by a country’s censorship requirements are able to remain in compliance with the code of conduct as long as they disclose it. The main idea of the free speech pact was to include as many internet companies as possible in order to create a greater influence and have more credibility. The companies who decided to refrain from signing the code of conduct have done so for reasons such as fearing the auditing process and not seeing any financial benefit from doing so.

A spokesman for Facebook, Andrew Noyes, did not comment directly on the topic of the free speech pact but says that, “As Facebook grows, we’ll continue to expand our outreach and participation, but it’s important to remember that our global operations are still small, with offices in only a handful of countries.” Social media sites such as Facebook and Twitter have had a huge affect on freedom of speech around the world, but the issues of privacy and free speech are still not black and white, especially when it comes to crossing country borders.

In order to be more influential, more companies will have to be added to the free speech pact. The initiative is modeled on previous voluntary efforts aimed at self-regulation and this one is no different as it came to life at a time when Internet companies were seeking to polish their image and potentially ward off legislation. The idea of the pact is to help companies do the right thing instead of having to play catch up after they mess up.

The Internet provides a forum for various outputs of information and communication services. In America, we take advantage of all the services that free speech can offer us. Despite what people assume, the internet is regulated and American citizens are not completely oblivious to the dangers that then internet creates. By signing the code of conduct, countries will be able to learn how to work collectively and to allow them to integrate and communicate freely with those outside of their countries. The key for this code of conduct to protect privacy and free speech is to get technological companies outside of the U.S. to sign it. If Facebook and Twitter were to sign the pact, the benefits of free speech would be easier to spread because of the audiences that the social networking sites attract.

– Jordan E. Strohl

Calvert, Mary F. 6 March 2011. The New York Times.

http://www.nytimes.com/2011/03/07/technology/07rights.html

The Citizen Lab. 7 March 2011.

Sites Like Twitter Absent From Free Speech Pact

Kopytoff, Verne G. 15 March 2011. KOM105.

http://kom105.blogspot.com/2011/03/sites-like-twitter-absent-from-free.html

Image Source: http://www.feross.org/wp-content/uploads/2009/08/internet-censorship.png