A hint at how First Amendment considerations will change as Americans express themselves, increasingly, online
In 2009, Bobby Bland, David Dixon, Robert McCoy, John Sandhofer, and Debra Woodward were employed in the Hampton, Virginia Sheriff's office under B.J. Roberts. In November of that year, Roberts ran for re-election, and Bland and his colleagues, among other moves of subtle insubordination, took to their Facebook accounts to like the campaign of Roberts' opponent, Jim Adams. Roberts ended up winning the election. He then -- having seen those likes -- chose not to retain Bland and the others as employees. Roberts attributed the dismissals both to budgeting needs and to the employees' hindrance of "the harmony and efficiency of the office."
Bland and his fellow ex-employees thought differently, though. They took Roberts to court, arguing that, in the dismissals, he had violated their First Amendment rights.
Last week, the U.S. District Court of Eastern Virginia rendered its verdict, granting Roberts' motion for summary judgment. In its opinion, signed by Judge Raymond Jackson, the Court made a notable distinction: between the kind of speech represented by status updates on Facebook and the "speech" represented by a simple click of a like button. Considering 2011's Gresham v. City of Atlanta and Mattingly v. Millingan -- both cases that pivoted around the Constitutional protections afforded to Facebook posts -- the Bland v. Roberts opinion noted:
These illustrative cases differ markedly from the case at hand in one crucial way: Both Gresham and Mottingly involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter's posts from one click of a button on Adams' Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection.
This is a strange ruling, particularly because a Facebook like, as simplistic as it is, is nothing if not a "substantive statement." Yes, it's heavily mediated and standardized -- it says, "I like this thing right here," and nothing else -- but, still, it's saying something. I am not a lawyer, and all, but the First Amendment -- purposely broad, explicitly hazy -- has never been about the particular vehicles that facilitate expression. So while the like button may well be a facile and blunt instrument of self-expression -- and while, hey, it may well encourage a kind of intellectual/emotional/spiritual laziness -- none of that matters. Freedom of speech isn't about the speech that should be protected; it's about the fact that speech should be protected. Full stop. Nor is it about "speech," per se: It's also about demonstration and protest and assembly and worship and other activities that, silently but powerfully, bring a public face to a private emotion.