Finding a Fair Comparison for Online Activity

            Law has not completely caught up with technology.  In addition to the turnout of certain court cases, particular uses of this technology seem unfair and unreasonable.  Whether or not social media expression is protected is an issue that U.S. courts are split on, and the Supreme Court has not yet handled.  Courts continues to inadequately compare online activity to physical activities, but steps have been taken in a progressive direction.

            In 2009 six people were fired for liking and commenting on the Facebook page of their boss’s opponent.  A court of Appeals found that "liking" something on Facebook was the "Internet equivalent of displaying a political sign in one's front yard," which the Supreme Court had already declared as protected speech.  This reversed District Judge Raymond Jackson's previous ruling that “liking” is not protected because it is “insufficient speech” and therefore is not protected.  (http://www.cnn.com/2013/09/18/tech/social-media/facebook-likes-free-speech/)(http://online.wsj.com/news/articles/SB10001424127887324807704579083391772699608).

Repercussions in the workplace for online actions seem unacceptable, especially since employers have very little control over the off-duty actions of their employees.  An employer could see that an employee roots for a certain baseball team, is homosexual, or is of a certain religion, and find “justification” to fire them elsewhere on Facebook.  According to the Society for Human Resource Management, this phenomenon is called “lifestyle discrimination”  (http://www.shrm.org/templatestools/hrqa/pages/disciplineforoffdutyconduct.aspx).

            The biggest issue in a case regarding online activities is defining the equivalent since our system is based on precedents, or previously decided cases. Unfortunately, there is no equivalent to most online actions; it is a completely separate thing.  Regarding the previously discussed case, American Civil Liberties Union’s Ben Wizner said, "The Constitution doesn't distinguish between 'liking' a candidate on Facebook and supporting him in a town meeting or public rally."  (http://www.shrm.org/templatestools/hrqa/pages/disciplineforoffdutyconduct.aspx).

Comparing “liking” to going to a rally is ridiculous for two reasons.  Firstly, there is much more effort involved in going out and physically participating in a rally.  Secondly, little to no thought goes into “liking.”  People “like” things for a variety of reasons, making this a complicated problem.  People may “like” something out of support, because they think it is funny, because they do not know how to work the computer, because they are on a touch-screen phone and did not mean to, or lastly (the assumed reason) because they actually do agree.  This makes it clear that “liking” a post or page on Facebook can be more equal to accidentally stumbling into a rally than attending it on purpose.

This objection also goes for other posts.  Particularly non-technologically savvy users may post or share something accidentally.  It is unreasonable for Internet use to affect employment. Citizens should not be punished for their lifestyles or meaningless mistakes.