Former Deputy Sheriff Daniel Ray Carter Jr. probably didn’t think anything of it: The Virginia lawman simply hit up his Facebook account and tapped that Like button for the “Jim Adams for Hampton Sheriff” page. But it didn’t wind up being all that simple. Adams wasn’t his boss — Sheriff B.J. Roberts was, and he didn’t take too kindly to Carter’s support of his opponent in the 2009 election. What happened next is both surprising and yet totally predictable: Sheriff Roberts won the race and then sacked Carter and five other employees who Liked Adams.
The matter went to the Virginia courts, where free-speech protection was invoked, but the U.S. District Court Judge Raymond A. Jackson ruled in May that this incident wasn’t protected because no one actually said anything. “Liking a Facebook page is insufficient speech to merit constitutional protection,” wrote Judge Jackson. Why? Because, he says, it didn’t “involve actual statements.”
Agog at this, Carter is filing an appeal, but he’s not the only one going, “Huh?” Free speech advocates have also taken to skewering the notion. At the most basic level, “the judge is wrong…the Facebook button actually says the word ‘like,’ so there are actually words being used,” says Aden Fine, senior staff attorney at the ACLU. “And there’s a thumbs-up symbol, which most people understand means they, literally, like something.” Snarkiness aside, Fine technically has a point. And so does Facebook, which — like the ACLU — filed a court brief supporting Carter’s argument. The company explained that Liking political candidates is “the 21st-century equivalent of a front-yard campaign sign.”
That may be true, but that doesn’t stop employers from regularly instituting all sorts of policies to guide/control their employees’ online actions and behavior. (BloombergBusinessWeek said it best: The workplace is “where free speech goes to die.”) In that context, Sheriff Roberts could be viewed as no different from companies that inhibit or monitor workers’ status updates or Tweets.
If there is a difference, it might be this: Sheriff Roberts is the head of a law enforcement agency. There could be a higher expectation there, particularly when it comes to the law and matters of the Constitution — which basically protects the public’s freedom of speech from oppression or interference from the government, not corporations. In fact, in all but eight states and Washington, D.C., it’s even legal for private companies to base staffers’ continued employment on stuff like whether they donated to their bosses’ preferred political candidate. (It’s not legal to hire or fire based on race, religion, sex, age or other protected categories, but politics isn’t one of them.)
What do you think? Should Carter’s Facebook Like be considered a valid form of expression that’s protected under free speech? Or should the former deputy sheriff have known better and refrained?