Free Speech

Although the U.S. Supreme Court did not rule on a federal law restricting free speech until the 20th Century, debate about what the constitutional protection to free speech means is as old as the republic itself.  Jefferson was swept into the presidency in 1800 largely due to the unpopularity of the Alien and Sedition Acts, signed into law by President Adams in 1798.  Specifically, the Sedition Act made it a crime to publish, "false, scandalous, and malicious," writing against government officials.  Opponents of the act argued that it made it a crime to be critical of the government and that this was unconstitutional under the first amendment which mandates, "Congress shall make no law...abridging the freedom of speech..."  In the Kentucky and Virginia Resolutions of 1798, Thomas Jefferson and James Madison, respectively argued, that these laws were unconstitutional and should be nullified by the states.  In the Kentucky Resolution, Jefferson pointed out that protections on free speech are designed specifically to protect speech that is, "obnoxious to the views," of the government, "or thought dangerous to...their elections or other interests..."  The lesson here is clear.  The first amendment exists to protect your right to be critical of your own government.  Without it, political opposition can be silenced by force and imprisonment, or by the threat of force, and society can no longer remain free.  Although the first amendment initially applied only to the federal government, the equal protection clause of the 14th amendment now extends this constitutional protection to all levels of government.  In Brandenburg v. Ohio [1969] the U.S. Supreme Court ruled that this protection extended even to the advocacy of violence as long as such advocacy did not constitute an, "incitement to imminent lawlessness."

And yet this broad protection of expression critical of government is under attack in 2012 by a federal court in Virginia.  A Virginia sheriff (B.J. Roberts) fired six employees.  One of these employees, Daniel Carter, claimed that he was fired for clicking "like" on the facebook page of Sheriff Roberts' rival in his reelection bid, Jim Adams.  While it is far from clear that this was the reason that Mr. Carter was dismissed, the judge in this case declared that the issue was moot because clicking "like" on facebook did not constitute protected free speech!  A U.S. magistrate in Florida has ruled that a facebook page set up to criticize a teacher is protected speech under the first amendment, but Judge Raymond Jackson in Virginia ruled that simply clicking "like" on facebook does not amount to "expressive speech," as a posted comment would.  Really?  How is clicking "like" any less expressive than writing a cheque to a political campaign, something the Supreme Court has ruled is political speech?  How is it any less expressive than planting a sign in your front yard or putting a bumper sticker on your car, actions that everyone would recognize as protected political speech?  All are public statements made in support of a political candidate.  Isn't it the point of the first amendment to prevent precisely what is alleged to have happened in this case: the intimidation or retributive action taken by an employer or an elected official (in this case both) against someone for having opposing political views or supporting an opposing candidate?  How in the world could anyone who spent five minutes in law school, or ten seconds reading and thinking about the first amendment, dismiss this issue so casually? 

We can only hope Mr. Carter is appealing this decision and that an appellate court will recognize its absurdity.  Until then be careful: while I am protected in writing this blog, if you like it on facebook and your employer or elected official does not, you are not protected from retribution.  Unless, of course, you leave a comment.