Is a public-sector employee engaging in
"speech" for purposes of the First Amendment when he
"likes" a post on Facebook? A recent decision from the Eastern
District of Virginia concludes that the answer is "no." In Bland
v. Roberts (E.D. Va. Apr. 42, 2012), the court held that employees in the
Sheriff's Department did not engage in protected speech by "liking"
their boss' political opponent's Facebook page. When the boss won the election,
he fired six employees, who filed suit alleging 1st Amendment retaliation.
One employee claimed to have sent a "statement of
support" to the losing candidate during the campaign. The only evidence
presented to the court about such support was that he "liked" the
candidate's Facebook page. In declining to find this expression entitled to
constitutional protection, the court explained that:
merely 'liking' a Facebook page is insufficient speech to
merit constitutional protection. In cases where courts have found that
constitutional speech protections extended to Facebook posts, actual statements
were within the record.
This decision has sparked a lot of fires around the
blawgosphere. For example, on the Citizen
Media Law blog, Arthur Bright analogizes "liking" to signing an
online petition, which certainly would constitute speech. He argues that
"liking" a post on Facebook relies on the same type of substantive
expression. Venkat Balasubramani and Eric Goldman made this point on the Technology
and Marketing Law Blog, as well.
I would not be at all surprised if the decision is
appealed given the novel nature of the question (potentially, anyway), and the
publicity the case has received. Until then, you may want to review other posts
related to the effect
of social media on the public-sector workplace. For example, this recent
story about a firefighter's
Facebook post about the Trayvon Martin case.
Read more Labor and Employment Law insights
from Margaret (Molly) DiBianca in the Delaware
Employment Law Blog.
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