Risky Business: Can Liking a Facebook Page Cost You Your Job?

facebook justiceBy Kerry Gorgone, {grow} Contributing Columnist

Maybe it’s time to go back and examine which pages you’ve “liked” on Facebook. Here’s why …

The Case

Four deputies and two civilian employees were fired after they “Liked” the Facebook page of the candidate opposing their boss in the campaign for sheriff. They sued for wrongful termination, alleging that the firing violated their First Amendment right of free speech.

But does clicking “like” really mean anything? A U.S. District Court judge in Virginia doesn’t think so: he ruled that Facebook “likes” do not constitute speech, and therefore receive no protection under the First Amendment. Consequently, the terminations did not violate the First Amendment.

The Appeal

That decision is now on appeal before the Fourth Circuit Court of Appeals. The Sheriff’s Office maintains that the firing was unrelated to the employees’ social media activity. They also contend that liking a page can mean many things, so that simple “click of a button” does not constitute a “statement” that could be protected as speech.

I Don’t “Like” the Employer’s Argument

The defendant’s logic seems faulty to me. If I say “the President is so great,” you might infer a number of different meanings, depending on the context and my body language at the time. Nonetheless, my expression qualifies as speech, whether I genuinely admire the President, or roll my eyes and use a sarcastic tone of voice. Consequently, the possibility of a statement’s multiple meanings shouldn’t undercut First Amendment protection.

Refusing to consider a Facebook like “speech” from a Constitutional standpoint ignores the reality of modern day communication in the social media era. Liking a Facebook page is making a statement. Maybe it’s not as literal as “I like [Page Title],” but it’s certainly akin to “I publicly acknowledge the importance of this topic to me personally, and support this page’s content.”

“Liking” something should be considered speech, just as if I’d typed “I like something.” How much protection that speech deserves depends on what that “something” is. If I like a political candidate, that statement is entitled to more protection than if I like Fluff.

Contrary to the employer’s position in Bland v. Roberts, the simplicity of clicking “like” should not exclude that action from the definition of speech. Other simple actions have passed muster, like wearing a t-shirt that says “F*ck the Draft,” or wearing a black armband in protest of an ongoing war.

More Potential Problems

Apart from the First Amendment, think how dicey employment law will get if I like a Facebook page for “What to Expect When You’re Expecting,” and then my boss fires me, suspecting (though not stating) that I must be pregnant. The firing could violate the Americans with Disabilities Act.

An employee might like a page in support of gay marriage, the Republican Party, the Tea Party or fetish parties. Whatever the nature of the pages we like on Facebook, liking them is a conscious decision to broadcast our participation and support, even at a somewhat superficial level.

But then, that’s my opinion. Until we have legal precedent protecting our right to “like,” I’d recommend double checking your Facebook settings. If the pages you’ve liked are visible to the public, you may want to unlike pages that might offend a potential employer, or change your settings to hide that information.

On the other hand, you could just let it all hang out. After all, I’d never want to work for someone who didn’t like Fluff anyway. What is your take on this issue?

kerry gorgoneKerry O’Shea Gorgone, JD/MBA, teaches New Media Marketing in the Internet Marketing Master of Science Program at Full Sail University in Winter Park Florida. Follow her on Twitter: @KerryGorgone

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  • Cath

    Peculiar thinking indeed. What about ‘liking’ a page just to stay informed? They could have ‘liked’ it in order to keep an eye on the oppositions activity through the social network.

  • Frederic Gonzalo

    Excellent article, but I beg to differ on one particular point. You mention that liking a page is a statement. I strongly disagree, because it depends on what your field of activity is. In my case, as a marketing consultant, I often like pages just to be able to see what the brand or celebrity does or say. It’s simply competitive analysis.
    In this context, if I were to like another political party, could it not be simply that I wanted to see what they were saying, in order to better monitor their presence, good and bad things alike?
    So liking a page is not a statement, in my mind. Liking a post, however, now that’s a different thing altogether and your arguments here speak to that.

    Cheers,

  • I agree with Frederic and Cath. I often “like” pages that I just want to keep an eye on. I liked both presidential candidates and Ron Paul’s profiles during the election even though I only supported one of them. I feel like the defense should be using another tactic. Free speech might not be the answer.

    I wonder if they had a social media policy in effect…

  • Nice post Kerry. I tend to agree with the other commenters, viz. “I publicly acknowledge the importance of this topic to me personally, and support this page’s content.” While Liking a page does acknowledge importance of a topic, it does not necessarily imply support or endorsement. For instance, I “Like” (quote marks important here) far right and far left pages and other fringe pages because I get insight into groups and ideologies I’d otherwise understand poorly.

  • This is a really interesting case. Makes me wonder how far employers could take this if the ruling is upheld. People often ‘Like’ pages just to keep up with what’s going on – it’s impossible to tell why someone ‘liked’ a page.

    It looks like the law is going to have to come up to speed with the way people communicate online.

    Thanks for sharing this article

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  • Kerry O’Shea Gorgone

    Hi Frederic,
    You’ve articulately stated the opposing viewpoint, which I always appreciate. Here’s my take on it: having discovered what the page is about, you will decide whether to “unlike” it based on the content. Therefore, leaving your initial “like” in place constitutes a statement, at that point. Given that your career involves “liking” pages for reasons unrelated to your personal views, it may well be that, in your case and other similar cases, a “like” would not be a statement, but the pages you choose to support in your personal life should qualify as speech.

  • Kerry O’Shea Gorgone

    Thanks, Roger! I appreciate your point of view, although I’m not sure you’d ever get the chance to explain to a potential employer why you liked a page they found offensive. They would probably investigate you on social media sites and, based on public content, made decisions that could be based on their own prejudices. I’d prefer to err on the side of protecting speech, but I do see how “liking” a page could be based on curiosity. In that case, I’d say the statement would then be something like “I am interested in the content of this page.” At that point, someone might still form a negative opinion about you due to their own bias, so even that mild a statement ought to warrant protection, in my view.

  • Kerry O’Shea Gorgone

    Hi Cath,
    Thanks for your reply! I understand that you might have other reasons for liking a page, but you have a right to express curiosity about any topic of your choosing, so I think that even your statement, “I want to stay informed about this topic,” should be entitled to protection.

    Best,
    Kerry

  • Yes, Kerry. Your point is well-made. I have the luxury of working for myself, so I am not beholden to an employer. It’s a sad world though, where a boss would judge an employee by their social activities rather than their work performance.

  • Kerry O’Shea Gorgone

    Hi Cari,
    Thanks for your comment. Liking a page may be susceptible of a number of different meanings, but I still think your statement should be entitled to protection, i.e. “I support one of these candidates,” or “I am interested in or curious about this topic.” Depending on the candidate or topic, that mild statement might be enough to get you fired, which ought not to be allowed, in my view.

    All best,
    Kerry

  • Kerry O’Shea Gorgone

    Hi Beth,
    Agreed, the law needs to work overtime to keep pace with these changes.

    Best,
    Kerry

  • Kerry O’Shea Gorgone

    I wholeheartedly agree, Roger.

  • Anna Pham

    This is so true, since I find myself do not accept the friend request from people from my workplace and if they ever ask, I just say I forgot the password. This is because I find it uncomfortable to share things that are personal to people at workplace.

  • Great post Kerry. I just fear this is only the beginning……..

  • Frederic Gonzalo

    Good point. Someone could indeed go back to “unlike” a page after having gathered the info, but this assumes the analysis is not ongoing. I still think the waters are muddied here, but it will be an interesting topic to follow, for sure. Cheers,

  • I’m curious … did the incumbent get re-elected? I can’t imagine his shenanigans not stirring up tremendous controversy and diluting his community influence.

    If the Sheriffs office were a private entity that would be one thing but since it’s not … is this an indication of a less than free public society. Hmmm …

  • Sept. 19th: The appellate court has held that Facebook “Likes” are protected speech: http://www.entrepreneur.com/article/228476

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  • A. Baumez

    We are truly taking several steps backwards as a people with such hard-handed, moralistic tendencies punishing freedom of ideas. I could expound, but it’s not necessary. The founders of this nation would shed deep felt tears of sadness to see what it is that we’ve become that they fought so hard to overthrow: Tyrants.

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