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September 23, 2013
More than 36 million Facebook users “like” Barack Obama’s Facebook page. More than 11 million users “like” Mitt Romney’s Facebook page. The 2012 elections made clear that social media is the newest front in the war of political campaigns. Until last week, however, it was unclear to what extent, if at all, the First Amendment protects the act of “liking” a Facebook page.
Last week, a federal Court of Appeals in Virginia ruled that hitting the “like” button on a political candidate’s Facebook page is speech protected by the First Amendment. The case at issue involved six former employees of the long-time Sheriff of Hampton, Virginia. When the Sheriff sought re-election in 2009, a former employee of the Sheriff’s Office ran against him, and several current employees (including Daniel Carter) supported the Sheriff’s opponent. They “liked” the rival candidate’s Facebook page, posted comments of support and encouragement on the Facebook page, and posted pictures to Facebook showing their support of the candidate. When the incumbent Sheriff eventually won the election, those who had supported his opponent were not reappointed to their positions, and they filed a lawsuit claiming that the Sheriff violated their First Amendment rights when he used their Facebook activity as the basis for firing them. Carter was the only employee to specifically allege that “liking” a Facebook page should be protected by the First Amendment.
The plaintiff-employees lost in the trial court, with the District Judge concluding that the act of “liking” a Facebook page was insufficient to merit any constitutional protection. But the Fourth Circuit Court of Appeals, in an opinion written by Chief Judge William Traxler, disagreed and ruled in favor of the employees. The Court observed that liking a candidate’s Facebook page “is the Internet equivalent of displaying a political sign in one’s front yard,” something the U.S. Supreme Court has long-held to be protected by the First Amendment. Moreover, the Court wrote that “liking” a political candidate’s page conveys an unmistakable message that the user approves of the candidacy, and it is “of no constitutional significance” that that message is produced by a single mouse click rather than through a series of individual key strokes.
This is a significant development in First Amendment law as it relates to the speech of public employees. Gilberton, Pennsylvania Police Chief Mark Kessler recently learned the hard way that not all speech is protected speech: he was terminated after he posted videos to the internet making profanity-laced, pro-gun, and anti-liberal statements. The right to free speech is not absolute, and as we noted last week on this blog, the City of Gilberton was likely well within its legal rights to fire its Police Chief for posting those videos. The Fourth Circuit’s opinion in this case, however, makes it harder to fire an employee for internet speech – which clicking Facebook’s “like” button is – that the employer disagrees with. The decision does not mean that an employee can never be fired for his or her Facebook activity, and it is controlling only within the Fourth Circuit, which includes the Carolinas and Virginia, but not Georgia. Nevertheless, it is an important decision protecting the right of public employees to openly support causes and candidates of their choice, without fear of retribution from their employer.
The entire 81-page Order can be read here. The case is Bobby Bland et al. v. B.J. Roberts, No. 12-1671 in the Fourth Circuit Court of Appeals, on appeal from the U.S. District Court for the Eastern District of Virginia, Newport News Division (No. 4:11-cv-45-RAJ-TEM).
If you are a public employee who was demoted or fired because you engaged in some speech or expression that your employer disapproved of, contact one of the attorneys at Parks, Chesin & Walbert today for an evaluation of your situation. We also provide employers with legal advice, training, and guidance as to how to comply with federal and Georgia employment laws. Call 404-873-8048 or fill out our online contact form.