Don't "Like" this!

I write this blog for a number of reasons. One reason is that I want to give readers insight into important law cases that are being covered by the media. Second, I like to practice my writing skills. But probably the most important reason is that I want to get as many facebook "likes" as possible to boost my ego. As if my ego needed it.

But in all seriousness, as Facebook evolves and becomes more involved in our everyday lives, so does the law developing around social networking. It has been at the center of conversation about privacy rights. And just recently, it has been a topic of interest among 1st Amendment enthusiasts.

Bobby Bland and other sheriff deputies probably did not expect that a simple "like" could jeopardize their careers. They surely did not anticipate that they would be arguing in front of the federal circuit court of appeals about Facebook. No matter what the expectations were, the following decision could potentially affect how government employees socialize online.

The deputies of Hampton, Virgina are arguing that a simple online click is protected free speech. The Sheriff who fired them, allegedly because the deputies liked a competitors Facebook page during a local election, is arguing that it is not. They fought the law in the district court, and the law won.

The district court judge held that a Facebook "like" is insufficient speech to warrant protection. It saved the judge some time because he did not have to analyze the three-prong test to determine whether the state's conduct was retaliation to their "speech." If their conduct did not amount to speech, then obviously it could not  be speech regarding the public concern, which state employees may  constitutionally engage in.

The district court judge cited cases argued by the deputies in which the court did hold that Facebook activity is protected. He distinguished these cases, however, by stating that they differ markedly in one crucial way: both cases involved actual speech. They had commented on a post.  Maybe the judge is not a Facebook user because most people know that a "like" could have the same effect as a comment or even more. I mean everyone knows that if a woman "likes" a man's status update, it's because she has a crush on him.

After the case, there was a firestorm of commentary from different individuals, associations, and professionals. The ACLU, Facebook, prominent lawyers, and users each gave their two cents. Everyone came up with their own unique analogy for a Facebook "like" to actual speech. Facebook Inc. analogized a "like" to a campaign sign in the yard. An attorney analogized it to wearing a campaign button on a shirt. The ACLU analogized it to an "I like Ike" pin. How original. Although if I had to pick a winner - it would be the ACLU.

The United States Court of Appeals for the Fourth Circuit will have the opportunity to reverse the District Court. If it decides to uphold the decision, government employees will definitely have be more careful on Facebook. Like that's a bad thing. But, I do predict that it will be reversed because the courts are more likely to classify  this type of activity as protected speech. However, if it is "speech," it does not necessarily mean that the appellants would win. The three-prong test would still need to be employed.

Part of me actually wants the decision to be upheld. Maybe then, people will start to think about the consequences of their social networking activities, thinking before posting. But, let's be honest. I will probably see a "bong hit" on my news feed before the day is over.