Be careful who you “like” on Facebook.
You might just find yourself “liking” a lawsuit.
A federal District Court in Virginia ruled recently that clicking the “like” button is not an act of protected, free expression. In fact, it might come at a high cost indeed.
Five former employees sued the Hampton, Virginia sheriff’s department for wrongful termination, alleging they had been fired for “liking” the sheriff’s political opponent on Facebook. Unfortunately, Judge Raymond Jackson did not “like” their lawsuit very much. In granting summary judgment to the defendant, he said it would take more than merely “liking” a Facebook page to trigger First Amendment protection.
The case is Bland v. Roberts (U.S. Eastern District, Virginia).
The ruling was roundly criticized by constitutional scholars, intellectual property experts, and pretty much every lawyer not on retainer with Hampton County.
Here’s why: if the plaintiffs had gone around blabbing “I like the other guy” or even posting that very sentiment online, their speech would have been protected. But because they clicked a digital “like” button – an act arguably less blatant and direct than the spoken or written word – they were exposed.
In other words – “like” someone at your own peril.
The blog Technolog said the decision “flummoxes digital law scholars” and predicted a speedy reversal.
The problem is that while technology can change in a nano-second, the judicial process plods along at a glacial pace. As soon as judges get their robes robe wrapped around one cyber-issue, a new app or upgrade appears. The old law goes flying out the window.
That is why it took 60 years after the debut of “moving pictures” for the Supreme Court to deem cinema worthy of First Amendment protection. And it was not until years after the first Web pages went up that the high court granted free speech rights to web sites.
There are two clear risk management lessons here.
First, the Bland decision is a good opportunity for lawyers in employment law, family law, intellectual property and litigation practices to remind their clients to use discretion in making social media decisions. A hasty mouse-click might leave a client open to retaliation or liability.
Consider sending out an e-blast or client newsletter on this topic. Good for client relations and great marketing as well.
The second lesson is more general in nature. The digital deities are wily. They make it easy and attractive to like, poke, tweet and chat with all manner of anonymous and perhaps imaginary “friends.”
Who knows what uses will be made of our clicks and choices? Who can say how our preferences might be perceived by employees, clients or potential voters?
All of which underscores the wisdom of my late grandmother Effie.
Choose your friends wisely, she always said. To which I would add – at least until an appeals court rules otherwise.