Depending on your opinion, you are probably going to “dislike” what you’re about to read (If they only had those buttons—but that’s a different story for a different day). Last week, a judge in Virginia ruled that a public employee’s like of a political opponent that resulted in his firing did not fall under protected speech. The Sheriff who fired the public employee who sued him, B.J. Roberts, argued that he and other employees were fired because of their performance and what he called actions that “hindered the harmony and efficiency of the office.”
Judges have ruled in the past that many forms of protest and speeches are protected under the First Amendment to the Constitution. Clearly, with this decision two sides are trying to duke it out in the court of public opinion. I’m more than certain that this First Amendment debate will linger on for years to come, but let’s see how both sides will think, shall we?
It Should Be Protected Speech
The American Civil Liberties Union, America’s foremost organization in protecting free speech and defending civil liberties, believes that a “like” is just as important of an opinion as writing it on screaming it. Aden Fine, senior staff attorney for the ACLU, told a recent article in the Los Angeles Times that, “The mere fact that you’re pressing a button to express that view or opinion instead of saying those words doesn’t make a difference.”
Fine has the backing of precedent, with the 1969 case of Tinker v. Des Moines Independent Community School District in which the Supreme Court ruled that non-verbal speech is constitutionally protected. It has been cited as grounds for a possible ruling by the Supreme Court despite the fact that that it involved the public school system and students rather than public employees.
The Judge Was Right
Whatever the ACLU has argued, the judge in the case, Raymond Jackson, will disagree. Why? Unlike most cases involving the First Amendment, no one made an actual statement simply by clicking “like.” He argues in his ruling, “Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection…For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper.”
I’m certain Judge Jackson may have read into Tinker v. Des Moines, but since the ruling clearly involved students’ constitutional rights in the public school, he may have thought it would not apply to other entities such as law enforcement or other public services.