What Constitutes “Speech”?

This morning’s news included a report on a Virginia lawsuit brought by sheriff’s deputies alleging retaliatory firing in violation of their free speech rights. They claimed they’d been dismissed for supporting the Sheriff’s (unsuccessful) opponent in a recent election.

The law is pretty clear that public employees do not lose their First Amendment rights simply because they work for government. So long as they exercise those rights on their own time, and avoid behaviors that would compromise the terms of their employment, they cannot be punished for expressing political opinions or otherwise engaging in expressive conduct.

Here, the “conduct” was clicking the “like” button on the opponent’s Facebook page. The question before the court was whether “liking” something on Facebook amounted to Free Speech. The Judge said it didn’t, since no actual words were typed.

The Judge was wrong.

The courts have consistently held that the Free Speech clause of the First Amendment protects the expression of an idea. Marching in a parade, saluting–or burning–a flag, and yes, clicking the “like” button on Facebook, all express agreement and endorsement, and are protected expression. The only reason people want to prevent Nazis from marching is that they get the message, loud and clear. Same with flag burning; the message of disdain for our country is what offends us.

Some messages don’t require words.

The Sheriff obviously thought that “liking” his opponent’s page sent a message. And he evidently understood it.


Intellectual Honesty and Facebook

The pitfalls of our new social media environments are widely discussed, if not quite as widely understood. A recent personal experience brought that point home to me rather vividly.

A couple of days ago, I posted an angry comment to Facebook about Joe Lieberman and Ben Nelson, and their apparent willingness to kill health insurance reform. In Lieberman’s case, it’s hard to know what motivates him. Nelson, as I said much less elegantly in my comment, appeared quite willing to trade the lives of the thousands of people who die every year because they don’t have health insurance  for assurances that insurance wouldn’t pay for abortions. I suggested there was a special place in hell for people who would trade away the lives of living, breathing Americans who desperately need access to medical care in order to save an indeterminate number of fetuses.

Admittedly, the language of my comment was not an example of the civility I so often advocate, and criticism on that basis would have been entirely fair. 

Instead, a Facebook “friend” (since “unfriended”) blogged that I had posted a “hate-filled” diatribe about pro-life advocates. That blog post–the accuracy of which could not be verified by anyone not on my Friends list, even if someone were inclined to do so–has subsequently made its way to other venues, morphing along the way into an accusation that I had consigned all anti-choice  people to hell.

Was my original comment uncivil? Yes. Should I have counted to ten before posting it? Yes.  Should I have framed my criticism in a more constructive fashion? Yes. Did I suggest that all anti-choice advocates would rot in hell? Absolutely not.

The moral of this story (aside from the obvious one that I should practice what I preach!) is that people who are ideologically driven will hear what they think you really mean, rather than what you really say, and social networking sites that limit the ability of fair-minded folks to do some independent fact-checking are just one more reason our public divisions continue to grow.