April 29, 2012
Browsing On A Sunday: Liking on Facebook and Political Views Can Get Someone Fired, and Technology in the Legislature
There is a bit of a buzz in the press over the last few days about a First Amendment case out of the Eastern District of Virginia. The case is Bland v. Roberts and it involves, among other questions, whether liking someone on Facebook constitutes an expression covered by the First Amendment. The case involves six plaintiffs who were fired by Sheriff B.J. Roberts after he had won reelection. The six had supported in various ways Roberts’ opponent, Jim Adams. Two of the plaintiffs had liked Adams’ page on Facebook. Roberts explained the firings based on reductions in personnel and other reasons.
The Court considered the retaliation claims raised by Daniel Ray Carter, Jr. and Robert McCoy. They claimed the engaged in constitutionally protected speech when they “made statements” on Adams’ Facebook page. McCoy’s statement was posted to Adams’ page but was later taken down. McCoy did not submit the statement to the Court, so it is not part of the record. Carter’s statement consisted of liking Adams’ page. Evidence showed that Roberts was aware of these activities:
However, the Sheriff’s knowledge of the posts only becomes relevant if the Court finds the activity of liking a Facebook page to be constitutionally protected. It is the Court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection.
Reviewing precedent, the Court said that the difference between this case and others where a First Amendment interest applied to Facebook posts is that actual statements were in the record. As the Court states:
These illustrative cases differ markedly from the case at hand in one crucial way: Both Gresham and Mattingly 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.
Venkat Balasubramani and Eric Goldman rip into the Court’s logic in Ars Technica. In a very simplified version of their view, liking someone or something expresses a preference which should be taken as a statement worthy of First Amendment protection. I don’t know who has the better of this as the Court’s analysis of Fourth Circuit precedent does not seem to be out of context. I have no doubt the case will be appealed.
There is another story of an individual being fired, ostensibly for political views, out of Canada. The Times Colonist (“Victoria and Vancouver Island news since 1858”) recounts the story of librarian John Maitland Marshall of the Victoria Public Library. Marshall was hired in 1954 to dispense books from Victoria’s new bookmobile and was fired two months later after “a group of public spirited citizens” investigated Marshall and presented their findings to the Victoria library board.
Marshall, it seems, had affinities for social justice, which in those days was tantamount to being affiliated with Communism. It seems Canada wasn’t immune to blacklisting individuals because of their political views. The Victoria community was so alarmed that there was talk of book burning for subversive texts, though that never happened.
Marshall protested his dismissal to no avail. Many of the librarians who worked with him resigned because of the Board’s actions. The publicity was great enough that library services were at a standstill as no one would apply for the vacant positions. It took three replacements for Marshall before a book was finally delivered to a patron through the bookmobile.
There is a happy ending. Marshall became a librarian in Saskatchewan and later in Toronto, without incident. He spent 17 years teaching in the faculty of library science at the University of Toronto. The Victoria Board apologized to him in 1998, flying him to Victoria so he could receive the apology in person. The account in the Times Colonist is an excerpt from The Library Book: A History of Service to British Columbia by Dave Obee.
The final story comes from the Associated Press via NBC-17 in Raleigh, North Carolina. The report concerns the move by the North Carolina legislature to distribute bills electronically to its members rather than in paper form. Much of the material now published gets thrown into the trash or recycling bins. The legislature is embarking on a pilot project that gives members Internet accessible laptops to read and file bills. The use will become mandatory if the project is successful.
Not everyone is thrilled at the idea. 31 year veteran legislator Senator Austin Allran says he’s noticed that lawmakers get distracted by laptops in committee meetings. Really? You mean to say that lawmakers in committee act no differently than law students in class? I think legislators have it better as they don’t have to pass an end of term exam. In any event, what will law review cite checkers do when the electronic copy is the only record of the bill? [MG]