Management's Workplace Lawyers

A Public Employee's Facebook "Like" Can Be Protected Speech

September 30, 2013

Clicking the “Like” button on a Facebook page may be constitutionally protected speech for which a public employee cannot be disciplined, according to the U.S. Court of Appeals for the 4th Circuit.

Facts of the Case:  In Bland v. Roberts, an employee of the Hampton, Virginia sheriff’s office expressed his support for the sheriff’s electoral opponent by clicking the “Like” button on the opponent’s Facebook campaign page.  The sheriff announced to his employees his disapproval of those who supported his opponent on Facebook.  He further warned the employee that his support of the opponent could cost the employee his job.  Following the sheriff’s re-election, the employee was not reappointed to his position. 

The employee sued, claiming that the loss of his positions was retaliation in violation of his First Amendment right to free speech.  The district court found that “merely liking” the campaign page was not sufficient speech to warrant First Amendment protection, and dismissed his claims.

The Court’s Decision.  The 4th Circuit reversed the district court’s ruling, finding that “clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.”   The 4th Circuit found in addition to being “pure speech,” the action was also symbolic expression, like the “universally understood ‘thumbs up’ symbol.”  The 4th Circuit deemed the action to be “the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”  Thus, the action of “liking” a Facebook page is speech that may be protected by the First Amendment.

The 4th Circuit further discussed the need to balance the rights of public employees to speak as private citizens against the government’s interest in efficient operation.  The 4th Circuit found that the employee was speaking as a private citizen on a matter of public concern – the election of the sheriff.  His speech was political in nature, which is entitled to the highest level of constitutional protection.  While employees holding confidential, policymaking or public contact roles within the government receive substantially less First Amendment protection by virtue of their position, the duties as a sheriff’s deputy performed by the employee at issue did not require political allegiance as a job requirement.

Lessons Learned.  Employees of private employers do not enjoy a First Amendment right to free speech, and therefore private employers, unlike public employers, can take disciplinary action against employees for job-related speech (subject to the National Labor Relations Act, which protects the right of employees to discuss the terms and conditions of employment).  Nonetheless, this case provides an interesting development in the fast moving and always changing legal landscape of social media activity.  Most people probably have not considered the implications and impact of certain social media activities, and the 4th Circuit’s ruling provides some guidance in this area.