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Freedom Of Speech On Facebook®

| Hayley R. Wells Hayley R. Wells

A recent decision by the United States Court of Appeals for the Fourth Circuit holds that when a public employee clicks "Like" on a political candidate's Facebook® post, that is constitutionally-protected free speech.

The United States Court of Appeals for the Fourth Circuit recently issued a decision (Bland v. Roberts) which extended free speech protection to the act of clicking "Like" on a political candidate's Facebook® page.  In the Bland case, six employees of the Hampton, Virginia, Sheriff's Department were terminated by the Sheriff of the City of Hampton ("Sheriff") for allegedly supporting the Sheriff's opponent in the 2009 election.  The former employees brought suit against the Sheriff and the City of Hampton, alleging that the Sheriff's failure to reappoint them following his reelection violated their First Amendment rights to freedom of speech and freedom of association.  The United States District Court entered summary judgment in favor of the Sheriff, and the employees appealed to the Fourth Circuit.

The Alleged Protected Activity

The former employees alleged that the Sheriff learned about their support and endorsement of his opponent's campaign.  The support included:

  • Employee 1 – clicked "Like" on the opponent's Facebook® page and co-hosted a cook-out attended by the opponent;
  • Employee 2 – made statements on the opponent's Facebook® page indicating his support of the opponent and attended the cook-out co-hosted by Employee 1;
  • Employee 3 – displayed a bumper sticker in favor of the opponent and voiced his opposition of the Sheriff to a poll worker;
  • Employee 4 – attended the cook-out and verbally expressed support for the opponent;
  • Employee 5 – informed co-workers of her support for the opponent; and,
  • Employee 6 – refused to support the Sheriff's campaign as she had done in the past.

The Fourth Circuit held that clicking the "Like" button on the opponent's Facebook® page constituted free speech, reasoning that a user's use of "a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance."  The Court reasoned that liking a political candidate's campaign page "is the Internet's equivalent of displaying a political sign in one's front yard."  Therefore, clicking "Like" constituted speech.

The Fourth Circuit also held that posting a message on the opponent's Facebook® page indicating support for the opponent constituted First Amendment speech worthy of protection.  Both employees were warned and admonished by the Sheriff that supporting his opponent would lead them to not being reappointed.  When the Sheriff was reelected, he in fact terminated the employees.

Free Speech Protection

As a threshold matter, only public employees are entitled to First Amendment protection of speech in the workplace.  There is no such protection for employees in the private sector.  In order for a public employee to show entitlement to First Amendment protection of speech, the employee must show that:

  • The employee was speaking as a citizen upon a matter of public concern, rather than as an employee about a matter of personal interest;
  • The employee's interest in speaking upon the matter of public concern outweighed the government's interest in providing effective and efficient services to the public; and,
  • The employee's speech was a substantial factor in the employee's termination decision. 

There is an exception to this general rule for jobs where party affiliation or political allegiance is an appropriate requirement for the effective performance of the public office involved.  In determining if the exception applies, a court will first determine if the employee's position involves government decision-making on issues where there is room for political disagreement on goals or their implementation.  If the position fits that requirement, the court will examine the particular responsibilities of the job to determine whether it resembles a policymaker, a privy to confidential information, a communicator, or some other office holder whose functions are such that party affiliation or political allegiance is an equally important requirement.  Generally speaking, a sworn deputy sheriff is the sheriff's alter ego because the deputy has powers conterminous with his principal, the elected sheriff.

Four of the employees were uniformed jailers who held the title of "sheriff's deputy."  Although the Fourth Circuit had previously held that newly elected or reelected sheriffs could dismiss deputies either because of party affiliation or campaign activity, the Court determined that this exception did not apply to the four jailers.  Although under Virginia law they had arrest powers and, thus, could potentially stand in the Sheriff's shoes, the Court noted that they had not taken the prerequisite classes to allow them immediate arrest power.  Therefore, their job duties were custodial in nature rather than law enforcement, meaning political allegiance was not an important aspect of their job.

Applying the test set forth above, the Fourth Circuit reversed the United States District Court's decision as to the employee who "Liked" the Facebook® post and hosted the cook-out (Employee 1), the employee who expressed support on the opponent's Facebook® page (Employee 2), and the employee who made disparaging comments to a poll worker (Employee 3).  The Court reasoned that each of these employees was speaking as a citizen about a matter of public concern.  Speech on public issues and debate about the qualifications of candidates are afforded the broadest protection under the First Amendment.  The Court also concluded that these former employees' interests in expressing support for their favorite candidate for sheriff outweighed any interest of the Sheriff, including providing effective and efficient services to the public.  Based on the circumstances surrounding each termination and comments made by the Sheriff, the Fourth Circuit also concluded that the three employees were terminated because of their respective support for the opponent. 

The Fourth Circuit upheld the termination of the other three employees (Employees 4, 5, and 6) because it found that they had not presented evidence to show that their support of the Sheriff's opponent was the reason they were terminated.

Conclusion

The Bland decision's impact is twofold.  First, it expands free speech protection for public employees.  Second, it may also serve as a catalyst for future legislation in the area of protecting the actions of private employees on social media sites.

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© 2016 Ward and Smith, P.A. For further information regarding the issues described above, please contact Hayley R. Wells.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

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