Facebook users post more than 50 million “likes” per day. Now federal courts are trying to figure out whether all those clicks are a form of constitutionally protected speech. Six former employees of a Virginia sheriff’s office say they were fired for “liking” their boss’ political rival. We explore the ubiquitous thumbs-up icon from a First Amendment perspective, and the broader debate over social media at work.

Guests

  • Kevin Bankston Senior Counsel and Director of the Free Expression Project, Center for Democracy & Technology

Transcript

  • 12:43:32

    MR. KOJO NNAMDIIt's a cornerstone of the Facebook experience. Every day, the network's users click like on more than 50 million pages, offering a kind of digital seal of approval for artists, retailers, political parties. Now, federal courts are trying to figure out a quirky constitutional question: Is a Facebook like a form of free speech? A federal appeals court in Virginia is considering the case of Daniel Ray Carter, a former employee of the Hampton, Va. Sheriffs Office.

  • 12:44:02

    MR. KOJO NNAMDIHe alleges he was fired by his boss in retaliation for liking the campaign page of his boss' political rival. Facebook and the ACLU have weighed in, arguing that a Facebook like was the digital equivalent of a bumper sticker or a candidate pin. But already one federal judge has disagreed, finding that the act of clicking on the ubiquitous thumbs up icon does not involve any actual statements.

  • 12:44:29

    MR. KOJO NNAMDI800-433-8850. What do you think? Joining us by phone is Kevin Bankston, senior counsel at the Center for Democracy & Technology and director of CDT's Free Expression Project. Kevin Bankston, thank you for joining us.

  • 12:44:42

    MR. KEVIN BANKSTON...for having me.

  • 12:44:43

    NNAMDIKevin, back in 2009, Sheriff B. J. Roberts, longtime incumbent in Hampton, Va., ran a successful campaign for reelection. But during that campaign, he learned that several of his employees were actively supporting his challenger, another high-ranking official within the office. Sheriff Roberts would ultimately fire six employees, including one worker who had liked the Facebook page of his challenger. Now the court is trying to figure out if this was a kind of retaliation for a protected speech. What do you think?

  • 12:45:13

    BANKSTONI think the court got it plainly wrong here, and I think the appeals court is going to reverse. The court here said that merely liking a Facebook page is insufficient speech to merit constitutional protection, as if there were some sort of minimum word count that you have to have when you're making a statement for it to be protected by the First Amendment or that there's some difficulty test such that merely clicking a button isn't expressive enough.

  • 12:45:37

    BANKSTONBut the fact is Facebook is right that this is the 21st century equivalent -- in this case, when we're talking about a campaign -- of a front yard campaign sign, and there's no meaningful difference between displaying that you support a candidate by displaying a like on your Facebook page than it is from displaying a campaign sign on your lawn or wearing a button or wearing -- putting a bumper sticker on the back of your car.

  • 12:46:00

    BANKSTONCertainly, if the test were, is it a sufficient enough expression, is it too simple to warrant First Amendment expression, then one of the most famous political slogans ever, "I like Ike," would not be protected speech. And that's obviously absurd.

  • 12:46:17

    NNAMDIBut "I Like Ike" takes longer to say than it does to make a click on a Facebook page. Does it matter that the kinds of speech we're talking about are so, well, reflexive and so easy to do?

  • 12:46:30

    BANKSTONI think there are enormous number of things that you could do with one click of a button that everyone would agree are protected speech, whether it's...

  • 12:46:38

    NNAMDIYeah, like hang up the phone, but go ahead.

  • 12:46:40

    BANKSTONI'm sorry?

  • 12:46:41

    NNAMDINo, go ahead, please.

  • 12:46:42

    BANKSTONWell, whether you're forwarding an email to show that you agree with it or to share it, to sign a petition, to send a letter to a politician through someone's action center -- these are all things that you can do with one click of a button. But I would hope everyone would agree that that's protected speech. In fact, if we're talking about the fact that the speech is easy to express, in its previous cases, discussing yard signs, the Supreme Court made it clear that it was actually a good thing that yard signs were unusually cheap and convenient.

  • 12:47:15

    BANKSTONAnd for that reason, they deserved protection especially because, for persons of modest means or limited mobility, a yard or a window sign might be the only way they could really express what they thought about a campaign.

  • 12:47:28

    NNAMDI800-433-8850 is the number to call. Our guest is Kevin Bankston. He is senior counsel at the Center for Democracy & Technology and director of CDT's Free Expression Project. 800-433-8850. How do you approach political speech on your social media accounts? Are you mindful of how comments and likes could end up affecting your workplace? Call us at 800-433-8850. Should your postings on Facebook be considered protected free speech? Send us an email to kojo@wamu.org, a tweet, @kojoshow, or go to our website, kojoshow.org, and join the conversation there.

  • 12:48:03

    NNAMDIKevin, Facebook has more than 950 million users worldwide, and the social network has become a major part of our public and our private lives. But the demarcations between public and private are still very blurry. We've also seen news stories about employers who scour Facebook pages of potential hires and even some stories about employers demanding Facebook passwords. Do you think we're getting any closer to a consensus about how to view our social media activity?

  • 12:48:35

    BANKSTONWell, how private or public your social media activity is is going to turn, in part, on how you've set it up, whether you have your privacy settings set such that you're sharing your posts with your friends or friends of friends or with everyone who cares to look. And so a key part of participating in social networks is being mindful of what your settings are and knowing how to use those tools.

  • 12:49:02

    BANKSTONBut, certainly, when you're on Facebook and you're posting on Facebook, you should be mindful of the fact that, even if you have your profile locked down, it's possible someone who does have access to it could share the comments that you're making outside of Facebook or outside of your page. It's also worth knowing that many, if not most, employers at this point are going to look very closely at what social media interactions you've posted publicly.

  • 12:49:26

    BANKSTONAnd as you mentioned, there is a growing and disturbing trend of employers and interviewers for employment demanding passwords or shoulder-surfing, looking over while you log in to your social media account so that they can see what you posted privately. We don't think employers are hiring -- or potential employers should have that right. And there is, I think, a growing consensus on that issue. We've seen two states, Illinois and Maryland, pass laws to prohibit this practice.

  • 12:49:54

    BANKSTONAnd this year, there are over a dozen other states considering similar legislation to make sure that employers can't make you turn over your password, so they can look at your private social media interactions.

  • 12:50:06

    NNAMDIA key distinction here, Kevin, might be the fact that these are employees or former employees of a government agency. But if we were talking about private employers, the protections would be different, in some case, not existent, right?

  • 12:50:19

    BANKSTONWell, certainly in this case, the issue arose because the First Amendment protects you against the government, and here we were, talking about a public office, a sheriff's office such that retaliation against these employees for their First Amendment protected activity would be unconstitutional. And the rules will be very different in a private employment context were there. The most important consideration is that employers will not be able to discriminate against you based on race or age or sex or other sensitive protected classes of -- categories of being.

  • 12:50:56

    BANKSTONBut certainly, the rules are going to be very different in private and public context. And, depending on the laws of your state, employers may be able to retaliate against you for things that they see you say online.

  • 12:51:10

    NNAMDISpeaking of the laws of the state, here is Andrew in Washington, D.C. Andrew, you're on the air. Go ahead, please.

  • 12:51:17

    ANDREWHi, Kojo. I just wanted to point out -- and don't get me wrong. I just think that speech in this particular case should be protected. But considering the working laws in the state of Virginia, whether it being a right-to-hire or right-to-fire state, technically, I mean, the guy could have...

  • 12:51:35

    NNAMDIUh oh, you're dropping off, Andrew. Andrew, we can't hear you any longer. I'll put you on hold, Andrew, to see if you could get to a stable location to continue the point you're making. And if you're a lawyer and you have a particular perspective on this ruling by this judge, call us at 800-433-8850. If the lines are busy, then shoot us a tweet, @kojoshow, or email to kojo@wamu.org. Here is Kelly in Purcellville, Va. Kelly, you're on the air. Go ahead, please.

  • 12:52:05

    KELLYThanks for taking my call. I'm, trying to follow this conversation, and I think it might strike me as a little ludicrous. I am on Facebook all the time, and there are pages that I see. And while I may not support what the page is about, I could hit like just because I like a comment that somebody made or I could hit like because I like the design of something. It doesn't necessarily say that I'm supporting everything that that page or that person stands for.

  • 12:52:37

    KELLYSo unless that person can back it up with a verbal statement saying, yes, I like this and I like everything that it stands for, I can't imagine that hitting one button can represent everything that you meant to say.

  • 12:52:51

    NNAMDIIt is pretty burnt, too, but it's my understanding that the quirk in this case is that when the employee hit like on the candidate's Facebook page that the employee's name showed up on a list of people who were supporting the candidate or words to that effect. But by hitting like, it was interpreted by the candidate's Facebook page that this employee was indeed endorsing the candidacy, and that may have led to problems. Is that your understanding, Kevin Banks, then?

  • 12:53:18

    BANKSTONWell, yes. When Mr. Carter pressed like on the Jim Adams for Hampton Sheriff page, that generated a message not only on that page but on Mr. Carter's page that says Daniel Ray Carter, Daniel likes Jim Adams for Hampton Sheriff.

  • 12:53:34

    NNAMDIYeah.

  • 12:53:34

    BANKSTONThat is a clear statement of his support for a public -- for a candidate for public office. And that same message went on his page. It went into his friends' news feeds. And his support of that campaign was also reflected on the campaign site. So I certainly take the caller's point that sometimes what the statement you're making when you press like can be ambiguous. I don't think that matters for First Amendment protection. And even if it did in this case, the statement was unambiguous. The statement was Daniel likes Jim Adams for Hampton Sheriff.

  • 12:54:05

    NNAMDIOn to Bob in Spotsylvania, Va. Bob, you're on the air. Go ahead, please.

  • 12:54:11

    BOBThanks very much, Kojo. I think that it might not be explicit in this case, but we're really walking into a territory where the potential for an employer or a business to be damaged by the likes of their employees. I mean, what if some of your employees clicked I like the KKK? What if they clicked I like NAMBLA? So I think that there are some protections that need to be in place. But on the other side of that coin, there's things that employers have a right to know that their employees may be doing that could significantly damage that business' credibility.

  • 12:54:57

    NNAMDIIf, for instance, Kevin Banks and our previous caller like the artwork on a KKK site and clicked like and her employee therefore concluded that this person favors the Ku Klux Klan, would you consider the click on that like protected free speech?

  • 12:55:18

    BANKSTONIt would be protected free speech, but the analysis of whether or not they could actually lose their job because of that would turn on a number of factors, including whether they were making a statement on a matter of public concern or merely voicing a private opinion. But I take the caller's point, and I don't disagree with it that, in many cases, what you say on a social network can reflect poorly on your employer. And particularly when speaking of private employers, they're going to have a great deal of latitude to deal with that, perhaps up to and including firing you.

  • 12:55:48

    NNAMDIWell, this case involves specific quirks of the Facebook experience, but it could very well end up affecting other platforms and other kinds of speech. In Twitter, for example, the retweet or RT is a common way to amplify interesting links or witty postings. Twitter users insist that retweets are not endorsements of the ideas they contain. But is that another potentially murky question that we're going to have to deal with?

  • 12:56:14

    BANKSTONPerhaps. I don't think it's a murky question that your republishing something is speech and is a speech act. I don't think that's a murky question at all. I think the murky question is sometimes how to interpret that speech, much like what the other caller was saying about sometimes it's ambiguous what a like means. I think sometimes it's ambiguous what a tweet means. But there's no question that your retweeting something or republishing it is an act of speech.

  • 12:56:39

    NNAMDIHere is Mattheus in Washington, D.C. Mattheus, you're on the air. Go ahead, please.

  • 12:56:45

    MATTHEUSYeah, Kojo, thanks very much for taking my call. Yeah, I remember when I was in graduate school, I wrote a paper concerning this new technology, computers and electronic (unintelligible) all of those things on Facebook, what not. Those things, they are very wonderful, believe me. Today, I can send information in the twinkle of an eye to my homeland, to the consulate officer at any time.

  • 12:57:13

    NNAMDIOn the other hand?

  • 12:57:14

    MATTHEUSLook here, that's one thing that we have to bear in mind. There's nothing wrong with public forum and public speech, but it's like saying to a kid, look, do not stick your hand in the fire. If you stick -- you know that if you stick your hand in a fire, it's going to burn you. If you're going to put all your stuff out there in the public forum, hey, don't blame the employers because they know that people are so...

  • 12:57:38

    NNAMDIOK. Got your point. I just wanted to get quickly Brian in Alexandria, Va. in. Brian, you've got about 20 seconds to make your point.

  • 12:57:45

    BRIANWell, my point is that hearing about this story is just one more -- there's a long list of examples, so I have no interest in Facebook. Most of the people I know don't use it. I was on it once for a few hours and couldn't figure out what the fascination was, trying to figure out all the things and finally deleted my page and have not gone back. Every time I hear about something...

  • 12:58:06

    NNAMDIKevin Bankston, no doubt, you are hoping that when this goes to a higher court, it will be found to be protected speech.

  • 12:58:13

    BANKSTONYes. I think we all need to remember, as the Supreme Court explained over 15 years ago now, when you go online, your First Amendment rights come with you (unintelligible).

  • 12:58:21

    NNAMDIKevin Bankston, thank you so much for joining us. And thank you all for listening. I'm Kojo Nnamdi.

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