Media and Entertainment Law Newsletter, December 2013

12/12/2013

Why No Employers Should Like the Constitutional Protection of the Facebook 'Like' 
by Thomas J. Williams

In another example of a court applying traditional First Amendment principles to modern technology, the Fourth Circuit Court of Appeals recently held that Facebook "likes" are a form of speech protected under the First Amendment.

Six former employees of the Hampton, Virginia, Sheriff's Office filed suit against the Sheriff, alleging that, based on "various instances of speech they made in support of [his opponent]'s campaign," including "liking" the Sheriff's opponent's campaign page on Facebook, the Sheriff retaliated against them in violation of their First Amendment rights by not reappointing them after his re-election.

The former employees appealed, and in evaluating their First Amendment claim, the Court of Appeals noted that the first inquiry "is whether the conduct that the employee maintains precipitated his non-reappointment [liking the opponent's campaign page on Facebook] constituted speech at all." Relying in part on Facebook, Inc.'s amicus curiae brief, the Court of Appeals analyzed "as a factual matter, what it means to 'like' a Facebook page." The Fourth Circuit concluded that "on the most basic level," clicking Facebook's "like" button not only "literally causes to be published the statement that the user 'likes' something," which the Court characterized as "pure speech," but also uses the "universally understood 'thumbs up' symbol" to express the user's association" with the "liked" page, which the Court viewed as "symbolic expression."

As have other cases applying traditional First Amendment analysis to modern technology, the Court drew analogies to older forms of communication. For instance, the Court stated that there is no constitutionally significant difference between "liking" something with a single click and typing a message on a traditional computer keyboard. Similarly, the Court observed that "liking" a candidate's campaign page "communicates the user's approval of the candidate and supports the campaign by associating the user with it," and in that way is "the Internet equivalent of displaying a political sign in one's front yard."

So what that means from a narrow perspective is that public sector employers must add "liking" something on Facebook to the list of things for which the employer may not be able to terminate or discipline an employee.

From a broader First Amendment perspective, however, the case shows once again that free speech principles settled in an old media age easily fit with a new media technology, once the new media technology is fully understood. No one would dispute that if a citizen in a public forum announces "I like candidate Jones and plan to support her in the next election," that is constitutionally protected speech. Liking a Facebook page is functionally no different, and as soon as the Court recognized that fact, the result followed easily.

Recent Victories

Kristina Head a/k/a Kristina Robinson v. American Media, Inc. d/b/a Star Magazine, et. al.
Cause No. 2013-0040 (71st District, Harrison County, Texas)
Court granted anti-SLAPP Motion filed on behalf of Star Magazine. Plaintiff, a star of reality show "Sixteen and Pregnant," sued the magazine and others for defamation based on its article discussing allegations made by the mother of Plaintiff's deceased former fiancé. Court dismissed the case and awarded fees and sanctions in favor of Star.

KTRK Television v. Theola Robinson 
Cause No. 01-12-00372-CV; (First Court of Appeals, Houston, Texas)
First Court of Appeals overturned denial of anti-SLAPP Motion filed on behalf of KTRK Television in a case involving television report on the closing of a charter school based on financial mismanagement.

In re: L.A.C. (323rd District Court, Tarrant County, Texas.)
On behalf of daily newspaper,we filed a plea in intervention opposing a defense motion to close the trial of a juvenile case to the press and public. The defense attorney withdrew the motion and agreed that the trial would be held in open court.

Steven Busti v. Platinum Studios, et. al.
Cause No. A-11-CA-1029-SS (W.D. Texas)
Plaintiff claimed that the film Cowboys and Aliens infringed on his eleven-page comic that he self-published in 1994. The court awarded summary judgment in favor of the defendants, finding there was independent creation, no access, no factual copying, and no substantial similarity.

For more information contact Laura Lee Prather at laura.prather@haynesboone.com or 512.867.8476 and Tom Williams at thomas.williams@haynesboone.com or 817.347.6625.

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