Social networking and freedom of speech: not "like" old times.

• Author: Shklar, Zachary
• Position: Case note

Bland v. Roberts, 857 F. Supp. 2d 599 (E.D. Va. 2012)

1. INTRODUCTION

   Facebook is a website that allows users to share photos, news, stories, and personal anecdotes from their daily lives in an easy to follow online community. (1) The website has developed a huge following and just recently reached the milestone of having over 1 billion users worldwide. (2) Each Facebook user has a "profile" that typically shares the user's name, a brief biographical background, pictures the user has uploaded to the site, a list of the user's Facebook friends, and a list of Facebook "pages" the user has "liked." (3) Unlike personal "profiles," Facebook "pages" are set up for various groups, such as businesses, organizations, religious groups, political groups, music groups, sports teams, and brands in order for them to connect with users and share that group's messages or simply represent their respective identities. (4)

   With such a large amount of users logged on to Facebook at any given time, the website has become an extremely efficient way to communicate messages, both commercially and personally. Accordingly, the website has become one of the central means of conveying a message throughout the world. On average, Facebook processes 2.7 billion "likes," 300 million photo uploads, and 2.5 billion status updates every day. (5) As Facebook continues to grow and provide an effective and efficient forum to present thoughts and ideas, it is essential that the courts protect these expressions of speech through the First Amendment.

   In Bland v. Roberts, the United States District Court for the Eastern District of Virginia was presented with the issue of whether "liking" a page on Facebook is speech protectable by the First Amendment. (6) This Note argues that the court's holding, that "liking" something on Facebook is not worthy of First Amendment protection, is a disturbing result that endangers one of our most fundamental rights guaranteed by the Constitution. In Part II, this Note analyzes the facts and holding of Bland v. Roberts. Next, in Part III, this Note describes in detail how Facebook operates and explains the legal background of the first amendment and its interaction with online communication. Part IV examines the court's rationale in Bland v. Roberts. Lastly, Part V explains the flaws in the court's reasoning and provides suggestions to courts facing similar controversies in the future.

2. FACTS & HOLDING

   Plaintiff Daniel Ray Carter, Jr., worked in the Hampton sheriffs office in Hampton, Virginia, as a sworn, uniformed deputy sheriff. (7) Defendant B.J. Roberts was the sheriff in that office. (8) In November 2009, Roberts was up for re-election for the sheriff position. (9) Jim Adams, former lieutenant colonel in the sheriffs department, opposed Roberts in the election. (10) Roberts won the election and subsequently decided not to reappoint Carter. (11) Carter alleged that in the months leading up to the election, Roberts learned that Carter expressed support for his opponent, Adams. (12) On March 4, 2011, Carter filed suit against Roberts "in his individual and official capacities" in the United States District Court for the Eastern District of Virginia alleging that Roberts violated his First Amendment rights by retaliating against him for supporting Adams in the election. (13)

   Specifically, Carter alleged that Roberts retaliated against him for his expressions of support for Adams via Facebook. (14) Carter argued that this retaliation violated his right to free speech. (15) Carter claimed that he sent a message of support to Adams on his Facebook page and also "liked" Adams' page. (16) Roberts conceded that he was aware of Carter's activity on his opponent's Facebook page. (17)

   Roberts claimed that his failure to reappoint Carter after his re-election was not retaliatory in nature. (18) He asserted that his decision was because of Carter's "unsatisfactory work performance or for [Roberts'] belief that [Carter's] actions 'hindered the harmony and efficiency of the [o]ffice.'" (19) On December 9, 2011, Roberts moved for summary judgment arguing that Carter did not adequately allege a free speech violation under the Constitution, and alternatively that even if his speech was protected under the First Amendment, Carter failed to raise a genuine issue of material fact as to the retaliation claim. (20)

   On April 24, 2012, the district court ruled in favor of Roberts' motion for summary judgment on all counts. (21) The court found Carter's evidence of his alleged statement of support to be insufficient to support his claim. (22) In regards to Carter's "like" of Adams' Facebook page, the court held that merely "liking" a Facebook page does not constitute a substantive statement worthy of First Amendment constitutional protection. (23)

3. LEGAL BACKGROUND

   The First Amendment to the United States Constitution guarantees "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances." (24) Rights guaranteed under the First Amendment, and free speech specifically, have always been some of the most cherished rights offered under the Constitution. (25) However, despite the fundamental nature of the First Amendment, it is also the center of many disputes and controversies. (26) Since the passage of the First Amendment, the Supreme Court of the United States has developed a rather complex set of rules and doctrines that have evolved over the last century to govern different modes of speech and expression. (27)

   This Part will begin by describing in detail how Facebook operates. It will also summarize important cases that demonstrate how courts have attempted to reconcile the free speech doctrine with activity online. Next, this Part will briefly explore the difference between traditional pure speech and symbolic expression. Finally, this Part will discuss the rights to free speech provided to public employees.

   1. Facebook

      In order to have a better understanding of the legal issues at play in this particular case, it is important to fully understand how Facebook operates. When a user logs on to Facebook, he or she typically begins on the home page. The home page is the starting point for Facebook and contains multiple links that allows users to navigate to different areas of the site. (29) Additionally, the home page contains the "News Feed," which is the primary place a user views and interacts with shared stories and news from his or her fellow Facebook friends or followed pages. (30) The user's News Feed is a customizable and continuously updated flow of posts made by the user's friends and selected pages. (31) Every time a user makes a comment or shares a story, it is placed in his or her friends' News Feeds for their viewing pleasure. (32)

      An additional feature of the Facebook website is the "like" button, which is represented by a thumbs-up icon. (33) The "like" button is placed underneath many types of content on Facebook, including user comments and group pages. (34) By clicking the "like" button, the user generates a "like story" which is placed on that user's profile page and additionally could appear in friends' News Feed. (35) "For example, if Jane Smith [l]iked the UNICEF Facebook page, the statement 'Jane Smith likes UNICEF' would appear on her profile page along with the title of the [p]age and an icon selected by the [pjage's administrator." (36) If a fellow user were to click on the title of the page or icon, it would bring him or her to that particular Facebook page just like a hyperlink. (37) When the "like [sjtory" is placed on the user's friends' News Feeds, it appears with that user's name and profile picture to clearly indicate who likes that particular page. (38)

      With a more complete understanding of how Facebook operates, it will be easier for courts to determine what message a user is trying to send when he or she posts something on Facebook, including "liking" a page or story.

   2. Free Speech on the Internet and Facebook

      Today's Internet era ushers in many new questions concerning free speech. The Supreme Court of the United States must now determine what kind of Internet activity should be protected under the First Amendment. The Court has observed that "[rjapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior." (39) All courts are going to be continuously challenged as the Internet era continues to change how people communicate their ideas to the world.

      In 1997, Reno v. ACLU (40) answered an important inquiry--whether speech on the Internet should be viewed just like any other speech covered under the First Amendment. The Supreme Court of the United States ruled that speech conducted on the Internet should be treated no differently than any other, more traditional avenues of speech. (41) Years later the Court reemphasized the importance of communications on the Internet and its subsequent protection stating, "[t]he [i]nternet ... offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity." (42)

      The decision in Reno has paved the way for many activities on the Internet to be deemed worthy of First Amendment protection by lower courts. The Second Circuit in Universal City Studios v. Corley held that posting a hyperlink online was speech protectable under free speech principles. (43) T.V. v. Smith-Green Community School Corporation held that the posting of photos to Facebook was protected speech. (44) J.C. v. Beverly Hills Unified School District similarly held that uploading a video to YouTube qualified as speech. (45)

      Facebook played a central role in two other recently decided cases...