Courts “Like” Some Novel Claims, But Not Others

Courts are analyzing the legal effect of interactive social media tools, such as the “like us” and “friend us” buttons on websites, and they are arriving at mixed results.[1]  Does clicking a “like us on Facebook” button qualify as free speech protected by the First Amendment?  The District Court for the Eastern District of Virginia said no.[2]  Will a business’ use of social media to reach customers create the minimum contacts necessary to establish personal jurisdiction?  It depends on the degree of interactivity created by the social media tools.[3]  Does “liking” a coworker’s Facebook post constitute protected concerted activity under the National Labor Relations Act (“NLRA”)?[4] An administrative law judge for the National Labor Relations Board said yes.[5]  So, what can we take away from these cases about how a court will treat online likes, dislikes and comments on websites using social media?  Well, it is clear that courts are diving right in and dealing with these novel legal issues.  From there, however, like most novel legal issues, it all depends.

Clicking a “like” button on a Facebook page is not an expression entitled to First Amendment protection; at least not in the Eastern District of Virginia.[6]  In Bland v. Roberts, a deputy sheriff was fired after “liking” the Facebook page of the sheriff’s opponent in an upcoming election.[7]  For a public employee to establish a claim of retaliation based on the First Amendment, he or she must satisfy a three-prong test.[8]  First, the employee must be “speaking as a citizen upon a matter of public concern.”[9]  Second, the employee’s interest in so speaking must outweigh the government’s interest in providing effective and efficient public services.[10]  And third, the statement must have been a substantial factor in the employer’s decision to terminate.[11]  The district court judge concluded that clicking the “like” button was not even expressive speech, absent evidence that it was a “substantive statement.”[12]  The decision is already garnering criticism as being inconsistent with Supreme Court precedent[13] and it is currently under appeal with the United States Court of Appeals for the Fourth Circuit.[14]

Clicking the “like” button is an expression that can be protected by Federal labor law.[15]  The NLRA is a Federal statute that protects employees against adverse employment decisions based on their “concerted activities for the purpose of . . . mutual aid or protection.”[16]  These concerted activities generally include discussions about the terms and conditions of employment.[17]  If an employee has “liked” a coworker’s comment about some term and condition of employment, such as the tax treatment of wages, it will most likely be protected concerted activity under the NLRA because it is a “meaningful contribution to the discussion.”[18]

Additionally, businesses need to be aware that adding interactive social media features to their website may subject them to the jurisdiction of a court in a another state.[19]  A business must have minimum contacts with the forum state before the court in that state can assert personal jurisdiction over the business.[20]  Whether or not the social media features on a business’ website create sufficient minimum contacts to subject the business to the authority of a court in the user’s jurisdiction depends largely on the degree of interactivity created by the website.[21]  The greater the degree of interactivity, the more likely it is that a court will find that the business “‘purposefully established’ contacts with the forum state,” which is “[t]he “Constitutional touchstone” of the minimum contacts analysis.”[22]  Merely having a presence on social media has been held not to be sufficient to create personal jurisdiction.[23]  Also, the bare ability to “like” or share information on a website is not enough either.[24]  However, when a business’ website, with an aim towards increasing website traffic or its customer base, includes interactive tools that allow readers to post comments and create a discussion, it may subject the business to the authority of a court in the jurisdiction of the website’s users.[25]

These cases demonstrate that novel legal claims regarding our communication on social media continue to be raised by litigants and tackled by courts.  Only time will tell which claims the courts will like or dislike next.



[1] See Carla Walworth & Mor Wetzler, When Companies ‘Friend,’ ‘Like’ ‘Tweet’ Their Way to Distant Courts, New York Law Journal (Oct. 11, 2012) http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202574420426&slreturn=20121124114422; David L. Hudson Jr., ‘Like’ Is Unliked: Clicking on a Facebook Item Is Not Free Speech, Judge Rules, ABA Journal (Sept. 1, 2012, 3:00 AM) http://www.abajournal.com/magazine/article/like_is_unliked_clicking_on_a_facebook_item_is_not_free_speech_judge_rules?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly; Triple Play Sports Bar and Grille, No. 34-CA-12915, 2012 NLRB LEXIS 13 (Jan. 3, 2012) available at https://www.nlrb.gov/case/34-CA-012915.

[2] See Bland v. Roberts, 857 F. Supp. 2d 599 (E.D. Va. 2012) (reasoning that “simply liking a Facebook page . . . is not the kind of substantive statement” that deserves constitutional protection.).

[3] See Walworth & Wetzler, supra note 1.

[4] 29 U.S.C. §§ 157, 158 (2011).

[5] See Triple Play, 2012 NLRB LEXIS 13, at *22 (concluding that liking a Facebook post is a “meaningful contribution to the discussion.”).

[6] Bland, 857 F. Supp. 2d at 603.

[7] Id. at 601-02.

[8] See McVey v. Stacey, 157 F.3d 271, 277-78 (4th Cir. 1998).

[9] Id.

[10] Id.

[11] Id.

[12] Bland v. Roberts, 857 F. Supp. 2d 599, 604 (E.D. Va. 2012).

[13] See Helen A.S. Popkin, Does your Facebook ‘Like’ count as free speech?, NBC News, http://www.nbcnews.com/technology/technolog/does-your-facebook-count-free-speech-749433 (analogizing to Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), which upheld the First Amendment right of public school students to wear black armbands to protest the Vietnam War) (last visited Nov. 10, 2012).  See also Hudson, supra note 1 (quoting free speech expert Clay Calvert, Director of the Marion B. Brechner First Amendment Project at the University of Florida, analogizing to a political endorsement during the Dwight Eisenhower presidential campaign: “it’s hard to imagine the slogan ‘I like Ike’ would not take on a strong dose of Facebook meaning with supporters liking him online.”).

[14] Jeremy Byellin, Facebook & The ACLU Join Appeal of Facebook “Like” Ruling, WestlawInsider (Aug. 14, 2012) http://westlawinsider.com/social-media-law/facebook-the-aclu-join-appeal-of-facebook-like-ruling.

[15] See Triple Play Sports Bar and Grille, No. 34-CA-12915, 2012 NLRB LEXIS 13 (Jan. 3, 2012).

[16] 29 U.S.C. §§ 157, 158 (2011).

[17] See Meyers Industries, Inc., 281 N.L.R.B. 882 (1986) aff’d sub nom., Prill v. NLRB, 835 F.2d 1481 (D.C. Cir 1987) cert. denied, 487 U.S. 1205 (1988).

[18] Triple Play, 2012 NLRB LEXIS 13, at *19, *22.

[19] See Walworth & Wetzler, supra note 1.

[20] Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

[21] Zippo Mfg. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1123-24 (W.D. Pa. 1997).

[22] Id. at 1123 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).

[23] Walworth & Wetzler, supra note 1 (discussing Lyons v. Rienzi & Sons, No. 09-CV-4253, 2012 WL 1393020 (E.D.N.Y. April 23, 2012)).

[24] Id. (discussing Sportschannel New England v. Fancaster, No. 09-CV-11884, 2010 WL 3895177 (D. Mass. Oct. 1, 2010) and Thomas v. Barrett, No. 1:12-CV-00074, 2012 WL 2952188 (W.D. Mich. July 19, 2012)).

[25] Id. (discussing Jones v. Dirty World Entm’t Recordings, 766 F. Supp. 2d 828 (E.D. Ky. 2011) and Mavrix Photo v. Brand Techs., 647 F.3d 1218 (9th Cir. 2011), cert. denied, 132 S. Ct. 1101 (2012)).

Author: Brian Scott

Brian Scott is a Senior Editor for the Rutgers Computer & Technology Law Journal. He attends Rutgers School of Law-Newark part-time in the evenings and will be graduating in May 2013. By day, Brian is a human resources manager for a State university where he specializes in employee/labor relations. He also volunteered during the summer last year as a part-time intern in the Trial Unit of the Union County Prosecutor’s Office. Prior to attending law school, Brian earned a B.S. in Management Science from Kean University and a Certificate in Paralegal Studies from Fairleigh Dickenson University. He is a member of the Law Student Divisions of the New Jersey State Bar Association and the American Bar Association.

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