Is a LIKE on Facebook Protected Speech?

by Michael Haberman on October 28, 2013 · 2 comments


 

This symbol could be seen as protected speech even if no words are said.

This symbol could be seen as protected speech even if no words are said.

Social media use has attracted a great deal of attention in the last several years. It continues to be a focal point of regulatory and judicial activity that does not seem likely to slow down. A recent court case gives us further input on the question of whether a Facebook LIKE is protected speech.

Freedom of speech

An often misunderstood concept on the part of employees is that they are free to say whatever they want under the concept of “freedom of speech.” In the private sector that is a misconception. Freedom of speech is a right protected when you are dealing with the government, be it the federal government or state and local governments in many cases. However, even with the government there are some restrictions on freedom of speech.

The application of freedom of speech to social media has been tested recently in the case of a Virginia Sherriff who fired several deputies for having “Liked” his opponent’s page on Facebook. According to attorney Michael Schmidt of Cozen O’Connor the initial ruling from a lower court was that just pressing the “Like” button was not sufficiently “speech” and was thus not protected. However, Schmidt reports that a year and a half later the Appeals Court ruled differently. That judge ruled that in today’s world the “like” button is sufficiently “speech” and those should be accorded protection under freedom of speech. Schmidt also report that the judge compared expressing a “like” for a political campaign to expressing your support by putting up a yard sign for the candidate.

For the time being clicking the “like” button on Facebook, when it involves a government entity, will be considered to be protected speech.

Private sector

I mentioned above that freedom of speech does not apply to the workplace. You are not free to say whatever you want against your employer or more correctly, you can say whatever you want you just need to be willing to pay the consequences. Does this mean that there is no protected speech? The answer to that question is “no,” for as we know the National Labor Relations Board says that Section 7 of the National Labor Relations Act protects some speech as long as it meets the standard of “protected concerted activity.” You can read more here and here.

If you are an employee that is protected by the NLRA, and the speech you are engaged in deals with “wages, hours and working conditions” and other co-workers participate in that discussion it is protected under Section 7. As we know working conditions include “supervisors and fellow employees” and the discussion can be as simple as clicking the “like” button on Facebook. As I wrote about here this protection is not extended to management, supervisory or other classes of employees like HR. Thus not everyone is protected in their speech.

The take-away

Both companies and individuals need to be careful in their use of Facebook and other social media. Companies need to be guarded in engaging in “knee jerk” reactions to something said on social media. They need to understand what is being said and by whom before any action is taken.

Individuals need to be aware that they can be held responsible for what is said on social media. If you are going to complain about your government that government has to respect your point of view. Your company does not have to respect or even allow you to voice your opinion about a variety of things, unless it deals with your hours, wages and working conditions and others agree with you. Beyond that you are fair game.

I personally would like to see Facebook install a “thumbs down” symbol in order to all us to express our disapproval about something. Listening Facebook?


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{ 2 comments… read them below or add one }

Sherry Gray October 29, 2013 at 11:01 am

Very interesting post Mike. I have never thought of free speech as basically only being protected when dealing with the government. Not that I thought we could all go around saying whatever we want either, but this post did give me a different perspective and yes, I too would love a thumbs down on facebook! It’s way overdue.

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Michael Haberman October 29, 2013 at 11:04 am

Hey Sherry, it is a common misunderstanding many people have that ends up getting them in trouble at work. Thanks for the comment.

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