What does it mean to “like” something? That is one of the next intriguing questions facing us as we roll down the uncharted path of applying traditional activities and claims to the modern social media era. Webster’s Dictionary defines the verb “like” as “to be pleased with; enjoy” and “to wish” and be “in the mood for”. Wikipedia adds, specifically with regard to online communities, that it serves to display one’s “personal attraction, acknowledgment or sympathy with the ‘liked’ object.”
I’m not sure that really answers the question of what it means to “like” something. It’s like when a spouse asks how he or she looks in a new outfit, and you answer with some trepidation: “Uh, I like it.” I guess it’s a better answer than “it’s interesting”, but what did you really mean? And your “I like it” could have dire consequences, the likes of which may be more appropriate for discussion in my firm’s matrimonial blog.
But two recent employment developments in the news highlight the consequences that could arise in this area too. A Sheriff in Hampton, Virginia recently fired six of his workers when one of them “liked” the Facebook page of an individual running against the Sheriff. The employees sued, and on April 24th a federal judge in the Eastern District of Virginia dismissed the lawsuit, holding that the employees were not entitled to free speech protection: “It is the Court’s conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”
Also making the news is a recent discrimination claim filed with the EEOC by a man who alleges that the Library of Congress harassed and then ultimately fired him because his homosexuality did not comport with his supervisor’s views on sexual orientation and religion. The man’s homosexuality was gleaned only after it was learned that he “liked” a Facebook link to a group that supports gay adoptions.
It is an interesting concept. So far, the cases we have seen involving employment decisions based on social media conduct include some actual words being spoken, or some specific activity being conducted. Here, there are no explicit words or acts, but only a click of a “like” button that prompts the employer’s response. So what does it really mean to “like” something? I don’t know. Is “liking” something akin to substantive speech? Doesn’t context matter? We see that an act, statement, and even those annoying list of shorthand acronyms have a very different meaning in the informal social media world than in the “real” world.
What does it mean to “like” something? So, like, perhaps you are supporting and aligning yourself with the content. Perhaps you are simply supporting the fact that the person you’re “liking” is doing something out in public. Or, without even intending to signal approval or disapproval of content, perhaps you are merely “liking” it so that your own Facebook friends can see a particular link, photo, or update on your own page.
Employer Take Away: What should you as an employer take away from this development?
I like to think there will be additional contexts in which this “like” issue will arise for your company. For example, whether an employee is providing an inappropriate endorsement or testimonial under FTC guidelines simply by liking a product or service. Or, whether an employee violates your no-reference policy simply by liking a former colleague on Facebook. Or, whether your employee is truly intending to speak substantively by clicking a button referring to a person, place or thing that your company finds objectionable. I am not yet convinced that a simple “like” can ultimately amount to substantive protected speech or activity, particularly because of its patent ambiguity. Still, depending on the factual context (and the level of public emotion on the issue), there may be consequences to your company if you simply act based on a “like”. As always, be careful when acting.
The issues here continue to develop and raise brand new questions. Which is why I like to monitor and discuss them.