Don’t Fire Employees Over Facebook ‘Likes’

By: Chris Crum - September 19, 2013

In the United States, Facebook likes are protected by the first amendment. Liking something on Facebook is the same as using your right to free speech to actually say, “I like this.”

That means that employers should think twice before firing employees over something they “like”. This is what we learned from a federal court ruling on Wednesday.

Do you agree with the ruling that a Facebook like should be protected as free speech? Tell us what you think in the comments.

The case has been making its way through the legal system for over a year. It began when Deputy Sheriff Daniel Ray Carter of Hampton, Virginia liked the page of “Jim Adams for Hampton Sheriff.” Carter’s boss, Sheriff B.J. Roberts was running against Adams. Roberts saw the like, and eventually won the election against Adams. Carter was then fired. Carter claimed it was the Facebook like that led to his termination. He sued, but the judge ultimately determined that a like is not protected free speech.

Carter appealed the decision, and Facebook itself even came to his defense. Facebook had this to say in legal documentation last year:

When a Facebook User Likes a Page on Facebook, she engages in speech protected by the First Amendment…

The district court’s holding that“‘liking’ a Facebook page is insufficient speech to merit constitutional protection” because it does not “involve actual statements,” J.A. 1159, betrays amisunderstanding of the nature of the communication at issue and disregards well-settled Supreme Court and Fourth Circuit precedent. Liking a Facebook Page (or other website) is core speech: it is a statement that will be viewed by a small group of Facebook Friends or by a vast community of online users.

When Carter clicked the Like button on the Facebook Page entitled “Jim Adams for Hampton Sheriff,” the words “Jim Adams for Hampton Sheriff” and a photo of Adams appeared on Carter’s Facebook Profile in a list of Pages Carter had Liked, J.A. 570, 578 – the 21st-century equivalent of a front-yard campaign sign.

If Carter had stood on a street corner and announced, “I like Jim Adams for Hampton Sheriff,” there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection

The ACLU also filed a brief saying:

With “one click of a button,” an Internet user can upload or view a video, donate money to a campaign, forward an email, sign a petition, send a pre-written letter to a politician, or do a myriad of other indisputably expressive activities. The ease of these actions does not negate their expressive nature. Indeed, under the district court’s reasoning, affixing a bumper sticker to your car, pinning a campaign pin to your shirt, or placing a sign on your lawn would be devoid of meaning absent further information, and therefore not entitled to constitutional protection because of the minimal effort these actions require. All of these acts are, of course, constitutionally protected…

That many people today choose to convey what they like or which political candidates they support by “Liking” a Web page rather than by writing the actual words, “I like this Web page” or “I like this candidate,” is immaterial. Whether someone presses a “Like” button to express those thoughts or presses the buttons on a keyboard to write out those words, the end result is the same: one is telling the world about one’s personal beliefs, interests, and opinions. That is exactly what the First Amendment protects, however that information is conveyed.

Fast forward to this week, and a federal judge overturned the decision, appearing to agree with the ACLU’s and Facebook’s reasoning. You can see the 81-page legal document here, but basically, what it comes down to is that pressing the like button to show that you like something on Facebook is no different than if you had actually typed the words “I like this.” You know, basic speech.

Oh, and in case you were wondering, employees using Facebook on company computers is not a federal crime.

Now, just because employees should be able to expect to be able to freely like whatever they want to on Facebook doesn’t mean that they can do whatever they want on Facebook and get away with it. Ask the Taco Bell employee that posted a photo of himself licking a stack of taco shells to Facebook earlier this year. When the photo went viral, he was fired.

Taco Bell Employee Licks Tacos, posts photo on facebook

Image: Facebook (It has since been removed)

I don’t see a court of law having any problem with that. Posting actual incriminating content on Facebook is obviously a great deal different than voicing your support of something via a Facebook like. You wouldn’t believe how often that happens, by the way.

There are other times when the lines are a little blurrier, such as when racism or other types of hateful content come into play.

Even Facebook’s views on freedom of expression are a little blurry at times. Take, for example, its many actions against any breast-related content. They once removed a photo of a woman’s elbow because it looked kind of like a breast.

Facebook elbow

Image: Facebook (via Daily Mail)

Facebook has not discriminated in its anti-boob policies, even enforcing policies against breastfeeding mothers, nude art (even cartoons) and mastectomy photos. Even ads related to the boobie bird fell under the wrath of Facebook (though to be fair, the ad copy was kind of creepy).

Still, Facebook had taken heat earlier this year for its approach to content depicting, glorifying and trivializing violence against women. Some angry groups got together and make a very public issue out of it, and this led to Facebook making some changes, but some felt this was Facebook walking a fine line between enforcing community standards and stifling free speech.

One thing is for sure: you can learn a lot about a person from the things they like on Facebook.

Facebook likes can reveal a lot about a person. Aside from the obvious likes (pages that reflect lifestyle choices, political views, religious views, etc.), other seemingly innocuous likes can reveal more info about a person than one would think. That is according to a study we looked at earlier this year from the Psychometrics Centre at the University of Cambridge.

Facebook is obviously a treasure trove of data about people, and that includes data about employees. Employers can look and find all kinds of things they don’t like about their employees if they look hard enough, but when it comes to using that as grounds for firing, then they’ll do well to remember the federal court ruling.

What do you think about the ruling? Did they get it right? Let us know what you think.

Lead Image: Jim Adams for Hampton Sheriff (Facebook)

About the Author

Chris CrumChris Crum has been a part of the WebProNews team and the iEntry Network of B2B Publications since 2003. Follow Chris on Twitter, on StumbleUpon, on Pinterest and/or on Google: +Chris Crum.

View all posts by Chris Crum
  • A Morris

    I can’t believe you used the Daily Mail as a picture source… it’s a rag of a paper. Mindlessly stupid. Anyway, you’re quite right about the likes thing. I’m not sure it’s the same here in England, but stupid behaviour on Facebook has led to numerous people being fired here.

    Personally, I’ve liked Breaking Bad. This does not mean I support the underground drug movement.

  • Reality

    If your boss is going to fire you for something so petty, it is obvious your boss is a nut. If your boss is a nut, secretly look for a new job and quit on him or her one day out of the blue.

    What is really scary is that if that cop is crazy enough to fire a co-worker for “liking” a web page —- what is he doing when he is arresting and pulling over people that he doesn’t agree with?? Is he making up charges? Is he doing things “his” way? Does he use excessive force?? These are the fundamental questions.

    Then again, there are lots of crazy control freak cops like that. Can you imagine what his wife or girlfriend goes through? What happens if she looks at a another guy the wrong way or God forbid, she liked the wrong web page?

  • http://www.brady-harness.artistwebsitescom Brady C. Harness

    I know a few people that have been Fired because their companies were snooping after to find Sh** on them and Bam no Job!
    Thise Ruling most certainly needs to be yelled from the Roof Tops!!!
    Brady C. Harness

  • Howard Crane

    Fuck it. I fire my employees for Facebook PERIOD.

    Facebook users are low-brow and no more fascinating than Borg Drones.

    • Travelsonic

      If you’re serious, you’re an idiot.

      • @Travel

        Nope he is serious. There are people like him that think they are better than everyone else. Funny thing is — if we followed him around for a week, we would probably find more dirt on him than his “low brow” employees.

        • http://www.NaturalDogTraining.INFO Paul Anderson

          I thought there was free speech…. It appears to me the employers have been cyber-stalking.


    It just is not right to fire employees over what they write in an online form since that seems to violate the the right to free speech. Of course, if it is done during work hours, it might mean less productivity from workers.

  • Kelley H

    Its a good thing I am unemployed because if everything I have ever written or “liked” could get me fired I would be in serious

    Seriously, what a person likes on Facebook is none of his/her boss’s business. Yes it does constitute free speech.

  • John

    You cannot fire people for having an opinion, whether they are whack jobs or not. When I was in management I had the best and most loyal team simply because of one unwritten criteria that I could be sacked for if I admitted to it. That criteria was that the person I employed should be should be male, married or had a significant other. (Of course I made sure of their ability to do the work). I never hired or fired for by employee having an opinion. The thinking behind my action was that the man had responsibility for his family. The theory worked well, and other managers were envious of my team. I never divulged my secret. But there was always a legitimate legal reason for hiring and firing. I now own my own company and have no need for employes, but if I did, I would definitely use the same unwritten criteria.

  • Robert Wright

    Make your profiles private people!

  • Cat

    Many aren’t aware that you can hide your likes, friends list, and other items on your timeline. I have my friends and likes set to “only me” as the only person that can see them. (People can still see mutual friends.) And never fill out all that personal info, like religion, politics, etc. Just because it’s asked, doesn’t mean you have to fill it out.

  • John Colascione

    All I can say is that I sure hope things never get to the point where people can not even say they like something anymore, irregardless of whatever it may be.,

  • Adwords Montreal

    My ex was fired over a related matter so I say watch out and don’t mess around with company emails and public forums.

  • J. Mealey

    Your lead implies that on Wednesday a federal court ruled that the “Facebook ‘Like'” is protected by the first amendment but in your article you didn’t speak about the conclusion of the case only that he had appealed. If I understand you correctly, I agree with the court that such speech should be protected as free speech.

  • rh

    if you are a member of facebook, do not ever put anything objectionable out there. Better yet, do not join facebook. Privacy is something one should protect. It is nobody’s f*#king business what you look like, who your friends are, what you do in privacy, and what you like and don’t like. Don’t the children and young adults of today get it? How hard is it to call somebody or email them something of importance. All facebook an do is hurt you. In a few years it will fade away as a “thought to be cool idea” gone bad. Get off the computer and texting all day on your cell phone and experience life!

  • Chuck

    I think from what I have read the scope is too narrow. For instance if a deputy supports another sheriff, I don’t have an issue, but if a deputy likes something that conflicts with his duties, that is another issue.

    A cop that “likes” a website for a hate group like the KKK, a teacher that “likes” NAMBLA, a Judge that “likes” the Army of God… these things show a conflict of interests and something that may cloud their ability to execute their job properly and I think these “likes” should not be protected.

  • Angela

    Although free speech should always be respected, however, not every decision is legally based. Maybe it is legally not acceptable to fire an employee due to her or his free speech on facebook. However, everyone should know it is a kind of public profile you freely offer to the world and one should take responsibility of it since it might be perceived by people of all kinds of background.

  • Kevin

    What a minefield.
    So if I work for Mazda but like Toyota then what?