Wednesday, August 8, 2012

Liking a Facebook Page May Be Constitutionally Protected Free Speech

Social Media has become a major free speech battleground around the world. For example, earlier this year Pakistan banned Twitter for a period of time because Twitter refused to delete tweets that were alleged to be blasphemy.

In the United States, some employers are demanding their employees turn over their Facebook usernames and passwords. In addition, an alarming number of colleges and universities are demanding students register their social media user names with their schools in a move that mimics China's Microblog Identification Program. Some colleges are even requiring students to download tracking software onto personal digital or social media accounts in order to keep their scholarships.

These practices are extremely disturbing and should not be allowed in the United States unless we want our society to turn into George Orwell's 1984. As I have stated on the record numerous times, I believe the above mentioned practices may violate the 1st amendment along with the 4th, and potentially the 5th, and/or the 14th amendments.

In a recent case, a Virginia man, Daniel Ray Carter, “Liked” the “Jim Adams for Hampton Sheriff” Facebook page in 2009. The incumbent sheriff learned of his subordinate’s (Mr. Carter's) “Like” for his opponent and fired Carter shortly after he won re-election. Mr. Carter sued, and earlier this year lost in U.S. District when the judge ruled that "Facebook ‘Likes’ aren’t enough speech to warrant constitutional protection."

The case has been appealed to the United States Court of Appeals for the Fourth Circuit (my jurisdiction) and Facebook and the ACLU are defending Facebook Likes as constitutionally protected free speech. The Fourth Circuit may decide whether a Facebook Like should be considered in the same light as an armband or other forms of expression that may indicate a political opinion.

The bottom line is that social media and other new technologies present unique legal, business, cultural, and political challenges. Therefore, it is imperative to have the proper social media policies in place and to train your staff, employees, and students so they understand the legal issues involved with social media.

To learn more about these issues you may contact me at

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.