In 2009, six employees of the Hampton, VA sheriff’s department were fired after ‘liking’ a Facebook page. They were fired by Sheriff BJ Roberts, and the page liked was in support of his 2009 election opponent.

Sheriff Roberts hasn’t denied that allegation entirely. He said that he fired some of them due to poor performance, and others were fired because he believe their actions jeopardized the “harmony” of the office. But while Virginia allows private employers to fire their employees for objectionable behavior, government employees are allowed to speak in public about matters of public concern without professional repercussions. After all, when your employer is the government, any attempt made to limit your expression is an attack on your First Amendment rights.

But Judge Raymond A. Jackson of the Federal District Court disagrees that ‘liking’ something on Facebook is enough of an expression to be protected. His decision claimed that ‘liking’ something was not the same as typing out a message, or even talking in public, and that an action with such little depth does not amount to expression.

Of course, it seems a little counter-intuitive that something could be simultaneously not enough expression to merit protection, and enough of an expression to be cause for termination. One of the employees, Daniel Ray Carter, Jr., agrees, and has appealed the decision, this time with both Facebook and ACLU lawyers backing up his case. Facebook lawyers believe Judge Jackson’s decision was based on “a misunderstanding of how Facebook works:” They’re arguing since clicking ‘Like’ on a page shows up on a user’s public profile, and even sends notifications directly to their friends’ activity timelines, it’s equivalent to a status that says a user likes something. The ACLU agrees, and characterizes ‘liking’ a candidate’s Facebook page as a “21st century yard sign”. The ACLU’s amicus brief reads:

‘Liking’ something on Facebook expresses a clear message – one recognized by millions of Facebook users and non-Facebook users – and is both pure speech and symbolic expression that warrants constitutional protection. Although it requires only a click of a computer mouse, a Facebook “Like” publishes text that literally states that the user likes something. That many people today choose to convey what they like or which political candidates they support by ‘Liking’ a Web page rather than by writing the actual words, ‘I like this Web page’ or ‘I like this candidate,’ is immaterial.

Only time will tell whether or not the courts side with Facebook and the ACLU. In the meantime, it seems that a dangerous precedent has been set, in which one’s right to free speech is predicated on the depth of that speech. 

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