What you post on Facebook can be used against you in Court. If you’re sharing something with your friends, you may as well be sharing directly with the local paper: A recent ruling in a U.S. federal court says that if you post something on Facebook, your friend can share that information with without violating your right to privacy.

A ruling by a Virginia district court last week doesn’t directly impact how most of us use Facebook, but it could. Like so many open questions about the Internet and free speech, we can expect similar court cases for years to come. According to the court’s opinion in Bland v Roberts 2012, clicking the Facebook’s “Like” button isn’t “sufficient speech to garner First Amendment protection.”
The case in question came before the U.S. District Court of Eastern Virginia after B.J. Roberts of the Hampton, Va. Sheriff’s Department fired five employees following his successful reelection in 2009. Budget reasons, unsatisfactory work performance and hindrance of “the harmony and efficiency of the office” were the reasons Roberts gave for letting them go. The fired employees said otherwise.
In taking their case to court, the plaintiffs — Bobby Bland, David Dixon, Robert McCoy, John Sandhofer and Debra Woodward — said they were dismissed because before the election, they each “Liked” the Facebook campaign page of Roberts’ opponent, Jim Adams. Yet, in a decision that flummoxes digital law scholars, the court decided that whether or not Roberts knew his employees “Liked” the campaign page of his political opponent, their “Likes” still weren’t considered free speech:
Roberts’] knowledge of the posts only becomes relevant if the court finds the activity of liking a Facebook page to be constitutionally protected. It is the court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection. Incases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.
“It’s a somewhat odd decision that a Facebook “Like “is not protected speech,” Jeff Hermes, director of the Digital Media Law Project, Berkman Center for Internet & Society stated.”The judge was essentially devaluing the ‘Like’ as speech because of how simple it is to do.”
Although the case involved other issues—including whether the sheriff was entitled to qualified immunity—it was Jackson’s like button ruling that surprised the legal community. “I’m speechless,” says Marquette University law professor Paul Secunda, who has written extensively on public employees’ free speech rights. “The analysis is just dead wrong. Pressing like on Facebook is the cyberequivalent of making a gesture at someone. We know that giving someone the finger or clapping for someone are considered forms of protected expression.”
Many public employees have been disciplined over online comments about superiors, co-workers, working conditions, customers or disputed political issues. In those cases, the court gauges whether the employer’s right to an efficient, disruption-free workplace trumps the employee’s free speech rights.
“Most of the cases involving public employees and social media have involved cases where those employees have blogged about something and it has found its way into the workplace,” Secunda says. “Often the question is whether the online comments cause a disruption or disharmony in the workplace or impair the ability of the employer to conduct its business.”
“Were Dwight Eisenhower running for president in 2012,” says free speech expert Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida, “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.”
Rosen emphasizes that the sheriff can require a certain degree of loyalty from his deputies. “The bottom line is that sheriffs in Virginia can demand political loyalty from their deputies since they serve a law enforcement function and they represent the sheriff,” Rosen says, “just as the president of the United States can require that his advisers and Cabinet members be politically loyal to him as a condition of their employment.”
The other bottom line is that employees live in a world where they must use caution before engaging in social media expression. “Everyone—government employee or otherwise—should be cautious about what they post on social media sites that are publicly viewable,” Calvert says.
Be careful what you put on Facebook, and how you use online social media in general. Online material can follow you for a long time.