Are Facebook “Likes” Protected Speech?

Categories: blog

Social media has undoubtedly changed the world we live in.  We can now send communications faster than ever before, and have much greater access to these communication platforms.  Because social media is a relatively new concept, the law is slowly catching up to it as disputes unfold.  Think for example, how many instances of property disputes have taken place in the United States in the last 200 years.  You can imagine there have been disputes for as long as we’ve been a nation.  Now think, how many social media battles have ensued over the last 200 years.  Of course, social media has only existed for a short period, so as issues arise, the law moves to catch up and resolve.

One critical consideration regarding social media is whether your activity on a website, such as Facebook, is considered speech.  For the purposes of this article, I will focus simply on whether Facebook is considered speech, or protected speech, in the employment law context.  The reason why this matters is because in certain instances, employment laws protect you from being terminated just for engaging in speech, or, in the employment law context “protected activity” or “concerted activity” depending on the setting and subject matter.

Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”  To put it more simply, the law allows employees to discuss certain activities, if they are doing so to improve the conditions of their employment.  For example, Section 7 allows two or more employees to discuss their wages without the fear of being fired.  This is in place because employers historically want to quiet wage talks in order to prevent arguments over more pay. 

These laws have been in place for many years, but what if you were discussing similar employment issues on Facebook?  Let’s go one step further, what if you didn’t even discuss the issue yourself, but simply “Liked” someone else’s post or comment?  Just recently, the United States Court of Appeals for the Second Circuit decided that “Liking” someone else’s posting is considered “speech.” 

What does this mean exactly?  Employees can potentially have the same protections online as they would in a normal in-person “protected activity” context.  Employers must be aware of this, in case they illegally react to social media incorrectly assuming it is not protected activity.

While not every jurisdiction has had to rule on the various social media issues that have arisen, it is important to take note of decisions happening nationwide because our local courts could potentially agree with those cases.

Employers need to know what new liabilities are being faced because of social media.  Employees should also be fully aware of what protections they may have online, and what protections they do not have.  These issues may seem simple but can easily cost people their jobs.  Don’t let that happen to you.  If you have any concerns about your employer’s social media policy or the need to create one, contact our office for a consultation at (407) 803-5400 or [email protected]