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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Is it time yet for the people who've opposed DADT repeal so fiercely that they've had their heads up their butts?

I spent a lot of time studying older and newer photos in order to be able to distinguish between the pre- and post-haircut Justin, so armed with all this background research I'm going to go out on a limb and say that this is "post." (Generally unnoted in the attendant hubbub over the haircut is the fact that as the youngster aged into late-teendom, the old "do" was coming to look kind of silly -- for, you know, a person of his age.)

by Ken

Wisconsin, Wisconsin, Wisconsin -- you'd think there was nothing else happening in the world. When we will we ever find time for the important stories? (if we must have more Wisconsin, an excellent contribution today is Paul Krugman's NYT column "Shock Doctrine, U.S.A.," in which he continues to hammer home the crucial point about the wave of far-right-wing revolution sweeping the country: that it has nothing to do with budget-balancing but follows the now-familiar right-wing strategy of using disaster as cover for ideological transformation.)

LET'S SEE, IN THE IMPORTANT NEWS . . .

Where to start? Well, certainly the most impactful story of the week is Justin Bieber's haircut. Heck, I barely know who this kid is, but I know this story is important.

Then there's Charlie Sheen's . . . well, Charlie-being-Charlie. And will he or won't he return to Two and a Half Men? By his own or CBS's choice? And can the show survive without him? It's a shame Wittgenstein and Bertrand Russell and Hannah Arendt aren'there to help us grapple with these momentous questions.

Or, of equally long-term significance, there's the long-after-the-fact revelation that the Newscorp exec who urged Judith Regan to lie to federal investigators about her affair with Bernie Kerik (if you've had an affair with Bernie Kerik, do you really need someone to tell you you should lie about it? of course technically you're really not supposed to lie to federal investigators, or to pressure other people to) was none other than the master of Fox Noise, Roger Ailes. (At the time, it's assumed, Newscorp impresario Rupert Murdoch was still nurturing the presidential hopes of Rudy Giuliani, and didn't want to see him embarrassed by his close association with Bernie K. As it turned out, Rudy G was more than capable of embarrassing himself.)

The suggestion has been that our Judith used a tape of a phone conversation with the then-still-anonymous exec to, er, encourage Newscorp to give her something like $10M to go quietly -- only to turn around and with supremely bad manners to file another $100M lawsuit! Of course if it had been one high-ranking official of, say, ACORN, encouraging another to lie to federal investigators, they would both long since have been tarred and feathered. Luckily, we've grown beyond this juvenile "government of laws" concept.

SO WHAT DOES THAT LEAVE US?

Well, there's the long-simmering scandal of Facebook's birthday coercion racket, which involves blabbing about the date to every poor soul who showed the questionable judgment to sign on as a person's "friend." The only thing more pathetic than being party to this shameless pandering is having it yield a total-so-far of three birthday greetings, one of which seemed more concerned with picking a fight. (It's possible that an individual person might be overly sensitized on this subject if by chance last year at this time, in the several weeks before the day, he had the two people who habitually remembered the occasion go and die on him.)

CAN'T WE TRY TO BE SERIOUS?

Instead I think maybe we'll do a follow-up on a report I passed on recently, concerning the military's preparations for dealing with DADT repeal. As I noted in my previous post, OutServe co-director JD Smith has been tracking procedures being put into place by the various military service branches for implementing DADT repeal, and he's now sharing a batch of e-documents being sent out by the Army.

There is, for example, an FAQ on DADT repeal, which answers questions like: "What education will be required for Soldiers and their families when repeal occurs?," "What is the changed policy on sexual orientation in the military?," and "Does repeal affect standards of conduct?" (this is an easy one: "Standards for personal and professional conduct apply uniformly without regard to
sexual orientation"). There's a list of "10 things you need to know for DADT Repeal. There's a DADT PowerPoint specifically for Army JAGs.

And there's this "Army DADT FAQs":

ARMY GUIDING PRINCIPLES FOR IMPLEMENTATION OF THE REPEAL OF DADT

1. Leadership Matters Most: Commanders’ and senior non-commissioned officers’ leadership and personal commitment to implementation must be visible and unequivocal.

2. Standards of Conduct Apply to Every Soldier: Our standards of conduct apply equally to all Soldiers regardless of sexual orientation.

3. Treat Each Other with Dignity and Respect: Unit strength depends on the strength of each Soldier. We achieve that strength by treating each Soldier with dignity and respect.

4. Application of our Rules and Policies Will be Sexual Orientation Neutral: Sexual orientation is considered a personal and private matter. All rules and policies, and the enforcement of those rules and policies, will be sexual orientation neutral.

5. Emphasize Our Role as Professional Soldiers: Leaders will emphasize Soldiers’ fundamental professional obligations and the oath to the Constitution and to obey the orders of the President and the officers appointed over them that is at the core of their military service. In the profession of arms, adherence to military policy and standards of conduct is essential to unit effectiveness, readiness, and cohesion.

6. Keep it Simple: Education and training should focus on actions and policies needed to maintain the good order and discipline of an effective fighting force.

7. There Is No Expectation To Change Religious or Moral Views: Soldiers will not be expected to change their personal views and religious beliefs. They must, however, continue to treat all Soldiers with dignity and respect..

8. Good Order And Discipline Will Be Maintained At All Times: Commanders and supervisors at all levels have the authority and responsibility to maintain good order, discipline and morale within their units. Harassment, bullying, or victimizing of any kind will not be tolerated.

9. Chaplains have both the right to serve and conduct religious services according to their faith and a duty to perform or provide religious support: The existing guidance developed by and for our chaplains, should be reiterated as part of any education and training concerning repeal. These regulations strike an appropriate balance between protecting a chaplain’s First Amendment freedoms and the duty to care for all.

10. Stay Focused on Your Mission: Conduct training to minimize disruption on the force to ensure our military mission is not negatively impacted.

Now I realize that just saying this stuff isn't the same thing as getting it done, having all Army personnel suddenly get with the new program. What I want to call attention to here is how, relatively speaking, how simple, clear, and commonsensical this all is. And then remember how passionately, how vociferously, even how apocalyptically this has all been fought -- and in some circles continues to be fought -- by the community of never-say-die homophobes, even in the face of the evidence from more enlightened countries that have tumbled sooner to reality, and discovered that integrating servicepeople of varying sexual orientations is simply no problem.

I'm not thinking just, or even primarily, of the familiar chorus of Krap Kristian Krazies. How about a tip of the hat to the likes of military-preparedness phonies like Senators Young Johnny McCranky and Lindsey Graham. For goodness' sake, this is an issue that even their usual partner in lying stupidification Holy Joe Lieberman knew better. Isn't it time for an apology from them at minimum, and more usefully an open admission of their previous crapitatiousness? An immediate and permanent retirement from public life would certainly seem appropriate but goes beyond anything I'm hoping for. I'll settle for a nice prime-time "Jeez, I can't believe how full of doody I was."

Fortunately, it turns out that within our military there are contingents of planners going about their business. The path may not be as smooth as one hopes in one's fondest imaginings, but at least it's not dependent on bigoted, retarded, hate-mongering sociopaths.

I believe what Senator Graham is saying, and Senator McCranky thinking, is: "Jeepers, I can't believe how totally full of doody I've been!"

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Your Facebook friends aren't, er, friendly enough? Consider renting friends -- especially if you've got "Jersey Boys" tickets to offer them

Some of the things it turns out you can rent these days are outlandish but understandable. And then there are things . . .

by Ken

Luckily, it's probably not necessary for me to restate my position on Facebook: that I don't get it any which way. Awhile back I actually tried to inform myself a little about it, and only came away more stupefied by declarations from seemingly reasonable fellow humans that they're "addicted." How? To what? It doesn't seem to me physically or mentally possible.

But then, there are people who watch Benny Hill. Or 24.

So no, I really don't mean to go there again just now. Actually, I raise the subject for the purpose of giving the Facebook faithful credit: for understanding that the basic building block of the enterprise, those so-called "friends," aren't friends in any previously known understanding of the word. Oh sure, I believe there was cynical intent in giving the name "friends" to Facebook remote-blips. Even users who understand that these people aren't really friends (let's face it, beyond your actual friends -- who, being your actual friends, don't have any need to be your Facebook friends, do they? -- most of those "friends" are barely even acquaintances), and by that I mean the broad category of minimally sane people, nevertheless can't suppress a certain residual frisson at the mention of friends. Subliminally, at least, some residue sticks.

Nevertheless, my point is that most Facebookers can be assumed to understand without prodding that their "friends" aren't actually "friends"; it's just the name given to those remote-blips. Maybe I'm touchy because friendship seems to me one of the truly worthy human institutions, but this latest challenge to the concept -- that is, the one I'm about to share with you . . . well, I don't know what to make of it. Perhaps somebody can explain it to me.

I have to preface this by saying that I hardly ever read Patricia Marx's "On and Off the Avenue" column in The New Yorker. It's not that I don't shop, but that the kind of shopping Ms. Marx writes about, whether on or off the avenue, seems never to have anything to do with my life. And I'm not sure that I would have looked at her outing this week if I hadn't pretty well exhausted the issue with days yet to go before the next one arrives. Usually the new issue piles in before I've gotten as much as halfway through the last one.

Then again, I might have looked at this column, which is called "The Borrowers," with the subhead "Why buy when you can rent?" (Only a précis is available free online. For once I can't imagine Net-surfing freeloaders feeling deprived. I guess in the course of thumbing through the magazine to find my way to other pieces I did intend to read I must have had my eyes light on some kind of peculiar items it appears you can rent, and I confess I did have a certain curiosity to see just what Ms. Marx had found for us to "borrow."

Eventually she gets around to the kind of stuff you might expect, or at least wouldn't be totally astonished to find, like designer purses (including "a $42,000 vintage Herm`s crocodile that rents for $4,800 a month," assuming you survive the "evaluations" and "credit histories" involved) and dresses (which turn out to come, for first-time renters, with a kit that promotes personal hygiene and rented-garment maintenance.

This stuff is of no earthly interest to me, but you can understand the impulse to have access to such fanciful treats at prices that may seem insane to the rest of us but that are "reasonable" compared with the cost of purchasing. And then there's stuff like textbooks, and textbooks and assorted stuff for kids that either they're apt to outgrow or they're apt to lose interest in. All fair enough. But Ms. Marx has the journalistic wit to give us the blockbusters up front.

For this one I don't have any word but weird:

You can hire a family. The Tokyo agency Haemashi-tai, meaning "We Want to Cheer You Up," is one of about ten outfits in Japan that supply clients with adult actors willing to impersonate any blood relation you require -- a loving dad to pick up your kids from school; reputable parents to vouch for you at a matchmaking party; noncomplaining, huggable grandchildren to spend the day with you; a trial husband who leaves towels on your bathroom floor to help you practice for your upcoming marriage (telephone 09048388162; no English spoken).

Unfortunately I've already used up weird, and I don't begin to have a word for what follows:

Another Japanese company, Office Agents, provides wedding guests, at about $250 per head -- a little extra if you want your rented chum to give a toast or sing and dance. Scott Rosenbaum, a thirty-one-year-old former Internet marketer who lives in New Jersey, read a newspaper article about this phenomenon and founded Rent-a-Friend, in October, 2009. The company has a database of more than three hundred thousand members around the world who can be employed, by paying subscribers, for platonic companionship (rentafriend.com; membership, $24.95 per month).

I'm going to pause here, even though we're still in the same paragraph. I need to collect my wits, because this thing is about to enter the Twilight Zone. Okay, let's do it.

"The friends make up their own pricing, anywhere from ten to fifty dollars an hour," Rosenbaum told me over the phone, "but we find we have a lot of friends who are willing to waive their fee depending on the activity, like if the other person has tickets to 'Jersey Boys.'" Agreeable strangers, the Web site states, are commonly contracted to go to the movies or out to dinner, give personal advice, go hot-air ballooning, attend a dance class, do pottery, teach manners, hang out, or go see "Jersey Boys." Occasionally, Rosenbaum said, the client's request is more unorthodox. When a college student was caught drinking on campus, he hired surrogate parents from Rent-a-Friend to accompany him to the disciplinary meeting with a dean. A friend in need is a friend in deed, indeed.

Actually, this last, supposedly "more unorthodox" example at least makes sense, provided you can get away with it. However, the reference to specifically "platonic companionship" reminds me that rental of non-Platonic friends is, well, one of the world's oldest institutions.

I wonder what Plato would have made of this breakthrough in "platonic companionship."

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Facebook fact of the day: Make sure you really like those people you agree to be friends with

Would you give one of these here guys a
kidney? You may not have any choice!

Since it's getting harder and harder to keep track of the finer points of etiquette, not to mention the ins and outs of the terms of service, of social-networking websites like MySpace and Facebook and Twitter, as a public service we try to keep DWT readers up to date on some of these subtleties.

Not many Facebook users know that when you agree to become someone's friend, you can be legally compelled to give him or her a kidney if needed. States vary as to the exact standard of proof of "need," but in most states a note from the patient's doctor saying, "Please give ______ a kidney on account of he/she [circle one] needs it for medical reasons," is sufficient, although some states require that the note be written on the doctor's prescription pad (marked "fill as written" and "nonrefillable," of course) and some states insist that the note be notarized. Most states specify that the doctor has to be a licensed M.D., but owing to the powerful lobbying presence of chiropractic practitioners in Delaware and Alaska, in those states pretty much anything goes.

While current law is clear on the enforceability of this provision, some legal experts are watching a case working its way through the 8th Circuit Court of Appeals. It is considered at least possible that the Supreme Court is prepared to consider the case on appeal, since both Chief Justice John "Honk If You Like Big Ones" Roberts and Justice Sammy "The Worm" Alito have been heard saying while drunk that they believe the clear intent of the Founders was that only big corporations or really rich and powerful individuals -- like, say, a Supreme Court justice? -- could "reasonably" expect a friend to hand over a kidney on demand.

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