About this judge who ruled that Facebook "likes" aren't "speech" -- is this guy really a judge?

"Merely 'liking' a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional protections extended to Facebook posts, actual statements existed within the record."

-- Newport News (VA) U.S. District Judge Raymond A.
Jackson, in a preposterous January ruling

by Ken

Judge Jackson's brilliant ruling about Facebook "likes," I should explain, was the reason, or one of the reasons, why he summarily dismissed the complaint of Daniel Ray Carter Jr., a sheriff's deputy in Hampton, VA, who alleged that he was fired by Sheriff B. J. Roberts because he "liked" the Facebook page of an official in their office who was running against the sheriff for reelection. The case has come back to life because a bunch of briefs have just been filed in support of Carter's appeal by Facebook and the ACLU with the Fourth Circuit U.S. Court of Appeals, as reported by the Washington Post's Justin Jouneval ("A Facebook court battle: Is 'liking' something protected free speech?").

Daniel Ray Carter Jr. logged on to Facebook and did what millions do each day: He "liked" a page by clicking the site's thumbs up icon. The problem was that the page was for a candidate who was challenging his boss, the sheriff of Hampton, Va.

That simple mouse click, Carter says, caused the sheriff to fire him from his job as a deputy and put him at the center of an emerging First Amendment debate over the ubiquitous digital seal of approval: Is liking something on Facebook protected free speech? . . .

Carter's troubles began in the summer of 2009, when longtime Hampton Sheriff B.J. Roberts was running for reelection, according to the lawsuit, filed in federal court in Newport News in March 2011. Roberts learned that some of his employees, including Carter, were actively supporting another high-ranking Sheriff's Office official, Jim Adams, in the election.

Carter liked Adams's campaign page on Facebook, according to court records. When Roberts learned of the campaigning on the site, he became "incensed" and called a meeting of employees, according to the lawsuit. He allegedly told them that he would be sheriff for "as long as I want it."

After the meeting, the lawsuit says, Roberts approached Carter and told him: "You made your bed, now you're going to lie in it -- after the election you're gone."

About a month after Roberts was reelected, Carter and five other employees who supported Adams or did not actively campaign for Roberts were fired, according to the lawsuit. The other employees are also parties in the lawsuit.

Now are you getting this? Judge Ray is saying that Deputy Carter's Facebook "like" doesn't qualify as "protected speech" because it isn't even "speech." And yet whatever it was, it was, so the suit alleges, sufficient to get him fired. The judge isn't disputing that; he didn't get that far because, after all, Carter didn't make any speech and so he isn't entitled to protection on constitutional grounds.

Even a right-wing judicial ideologue like Eugene Volokh was offended by the genius judge's ruling.

Jackson's decision has also drawn criticism from some legal experts. Eugene Volokh, a law professor at the University of California at Los Angeles, said firing government employees for speaking out about matters of public concern is generally unconstitutional.

He said there are some exceptions, such as when a high-ranking employee's political affiliations are relevant to the job, or if the speech greatly disrupts the workplace or diminishes public confidence in the government agency.

In the Sheriff's Office case, Volokh said, Jackson upset a precedent with deep roots in U.S. law.

"The judge's rationale that a like on Facebook is insufficient speech is not right," Volokh said. "The First Amendment protects very brief statements as much as very long ones. It even protects symbolic speech, like burning a flag."

Volokh, like the ACLU, says liking is similar to putting a bumper sticker on a car, so it should be protected. He said he thinks the 4th Circuit will probably overturn the district judge's ruling -- but if it does not, it would be a significant moment.

"If the 4th Circuit agrees with the judge -- that liking is not protected speech -- that would suggest an overturning of precedents," Volokh said. "It would be interesting to see what the Supreme Court would do with that decision."

One would like to think that the Fourth Circuit will find this an easy case, open and shut, at least to advance beyond the idiotic roadblock thrown up by Judge Jackson to consider the merits of the case. As the Post report documents, this is but one of a host of cases now wending their way through the courts seeking to align new technologies with existing law and precedents. And as such, it's certainly an interesting story.

Which is what attracted me to the Post story to begin with. But I have to say, I found myself a lot more interested in the case itself. I'll say this on Sheriff Roberts's behalf: It's a tricky business, having an election going on between the incumbent and another, respected official of the Sheriff's Office. But is there anyone who doesn't suspect that the truth is the sheriff overstepped wildly, and used intimidation tactics that are blatantly unethical and, one would like to think, just as illegal?

Unfortunately for Deputy Carter this looks to me like the kind of thing that's going to be awfully hard to prove in court but that instinctively I think most of us would say is pretty clear: that Sheriff Roberts is a bully who runs his office by fiat, without regard to nancy nuances like laws and regulations.

For the record, the sheriff denies everything.

In filings in response to the suit, Roberts's attorney disputes Carter's version of events and says the firings were not politically motivated. The attorney did not return a call for comment, and Roberts could not be reached.

"All employment decisions involving plaintiffs were constitutional, lawful, not the result of any improper purpose or motive, and not in retaliation for political expression," the sheriff's attorney wrote in the filings.

Roberts said that some of the fired deputies had unsatisfactory work performance and that the campaigning had disrupted the workplace.

LET'S TRY AN UNSCIENTIFIC AND EXTRA-
LEGAL TEST OF THE PROBABILITIES HERE

What I'm about to propose obviously doesn't and shouldn't have any legal standing, but I'm still going to invite you to rate the following statements drawn from the Post story on a truth-probability scale of 0 (most improbable) to 5 (most probable):

(a) When Sheriff Roberts learned of the campaigning on the site, he became "incensed" and called a meeting of employees and told them that he would be sheriff for "as long as I want it."

(b) After the meeting, Sheriff Roberts approached Deputy Carter and said, "You made your bed, now you're going to lie in it -- after the election you're gone."

(c) All employment decisions involving plaintiffs were constitutional, lawful, not the result of any improper purpose or motive, and not in retaliation for political expression.

(d) Some of the fired deputies had unsatisfactory work performance.

(e) The campaigning had disrupted the workplace.

My truth-probability ratings:

(a) and (b): 5 (highest probability)
(c) and (d): 0 (lowest probability)
(e): 1 (a smattering of probability -- but then, is this the fault of the people running against the sheriff or of the sheriff himself?)

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