In March we wrote about how some employers are asking candidates to hand over their email and Facebook login information to them when they apply for a job. Then in April we heard about a man being fired by his homophobic boss after he liked a Facebook page for same sex parents. And now we have a case of multiple people being fired for liking a page of a candidate running against their boss. Is this not only a violation of privacy but a violation of freedom of speech as well?
According to Fortune, in Bland v. Roberts, Bobby Bland and four coworkers in the sheriff’s department in Hampton, Va., clicked the “like” button on the Facebook page of Jim Adams, who was running against their boss, Sheriff B.J. Roberts, in 2009. Roberts won, and promptly fired all five, citing budget constraints, unsatisfactory work performance, and a lack of “harmony and efficiency” in the office. But Bland and his cohort insisted it was liking Adams’ Facebook page that got them fired.
Fortune writer Anne Fisher said:
“Of course, openly supporting your boss’s opponent in a political campaign seems risky on the face of it, but leaving common sense aside, the case hinged on whether a Facebook “like” meets the standard of free speech as protected by the Constitution. The judge ruled that it doesn’t, adding, “In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record” (emphasis is his).”
But why isn’t liking something considered part of freedom of speech? Because liking something is so easy on Facebook and often thoughtless it doesn’t seem like it should be included under the freedom of speech act but Eric Goldman, who teaches at Santa Clara University School of Law in Silicon Valley, told Fortune that because when you like something it shows up on your profile and can influence what kind of ads and sales you get, it should count. The judge may just not have fully understood what the results of liking something are.
And that is really the main problem with trying to sanction Facebook profiles. Old laws are being applied to something very modern that the judicial system has never had to deal with before. For example, there are also a number of colleges turning to social media monitoring companies to offer a “reputation scoreboard” to coaches and send “threat level” warnings about individual athletes to compliance officers. Tthis could be very tricky waters for the schools to navigate. The schools could be found liable if something happens to a student. In the case of University of Virginia’s Yeardley Love the school could have been blamed for missing signs that her boyfriend was violent with this kind of access.
It should be noted that this kind of invasion is against Facebook’s Terms of Service. “You will not share your password … let anyone else access your account or do anything else that might jeopardize the security of your account,” the site says in its policies. Facebook has threatened to “take action to protect the privacy and security of our users” in cases where employers seek passwords.
“I can’t believe some people think it’s OK to do this,” said Bradley Shear, a Washington D.C.-lawyer. “Maybe it’s OK if you live in a totalitarian regime, but we still have a Constitution to protect us. It’s not a far leap from reading people’s Facebook posts to reading their email. … As a society, where are we going to draw the line?”