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Facebook ‘likes’ as Protected Speech (More)

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You will probably recall the litigation in the US a couple of years back about whether someone’s ‘like’ on a Facebook page was constitutionally protected ‘speech’.

An employee of a municipal sheriff had Liked the page of a candidate running against the incumbent sheriff. When the incumbent was re-elected, he fired the employee. The court of first instance held that the Like was not political expression and not protected against retaliation. On appeal, that decision was reversed – the Like was political speech – but the firing was upheld for other reasons.

The US National Labour Relations Board has recently held that a Like on FB was protected as well, and the employee who had Liked a statement complaining of the employer’s actions had to be reinstated. Here’s a report of the decision.

Note that – according to this report – the result depends on just what was Liked. Liking some kinds of statement might constitute adoption of the statement to the degree that if the statement was a firing offence, so too the Like would be.

This strikes me as correct: the Like is speech, but its meaning will vary with what is Liked, and if the law does not protect the target, it does not protect the approval of the target either.

Do you agree that a FB Like should be considered expression subject to legal protection (and subject to the limits on that protection)?

Are there any Canadian instances of Likes being either protected as expression, or not?

Comments

  1. John Gregory
    September 5th, 2014 at 2:10 pm

    David Fraser of McInnes Cooper has submitted the following note:

    I’m not aware of any consideration of Facebook “likes” in Canadian courts or tribunals.

    However, I can’t imagine a situation where a Facebook “like” doesn’t convey some sort of meaning, which is all it takes to engage s. 2(b) of the Charter. From Irwin toy ltd. v. Quebec (Attorney general), [1989] 1 SCR 927:

    We cannot, then, exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed. Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. Of course, while most human activity combines expressive and physical elements, some human activity is purely physical and does not convey or attempt to convey meaning. It might be difficult to characterize certain day-to-day tasks, like parking a car, as having expressive content. To bring such activity within the protected sphere, the plaintiff would have to show that it was performed to convey a meaning. For example, an unmarried person might, as part of a public protest, park in a zone reserved for spouses of government employees in order to express dissatisfaction or outrage at the chosen method of allocating a limited resource. If that person could demonstrate that his activity did in fact have expressive content, he would, at this stage, be within the protected sphere and the s. 2(b) challenge would proceed.

    The content of expression can be conveyed through an infinite variety of forms of expression: for example, the written or spoken word, the arts, and even physical gestures or acts. While the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection. It is not necessary here to delineate precisely when and on what basis a form of expression chosen to convey a meaning falls outside the sphere of the guarantee. [italics in original; bold emphasis added]

    It doesn’t take much to bring s. 2(b) into play. If a physical gesture (thumbs up or the finger) can be expressive, then undoubtedly indicating that you like something on Facebook surely is expressive and protected expression under the Charter.