Does the First Amendment apply to employees using Facebook?

Maybe, maybe not. But this, from, sounds so wrong to me. Wrong, as in, unfair. I hope the Fourth Circuit will fair it up.

 Fired after a ‘Like’

 It was election season in November 2009, when Sheriff B. J. Roberts learned that some of his employees were actively supporting his opponent, according to the trial court’s dismissal of their case in April 2012. The employees – two civilians and four uniformed deputy sheriffs – had attended an election-season cookout with the opponent, told others about their views, and “liked” the opponent’s Facebook page.

 After Roberts was re-elected, he did not rehire the employees, citing reasons such as unsatisfactory work performance and a change in job responsibilities that required uniformed as opposed to civilian positions. The employees sued Roberts, claiming he violated their First Amendment rights to free speech and association when he fired them.

 The trial court ruled in favor of Roberts, dismissing the employees’ suit and holding that Facebook “likes” don’t qualify as “the kind of substantive statement that has previously warranted constitutional protection.”  Because no actual “statement” was made by clicking “like,” the First Amendment didn’t protect the employees’ expression of a political preference for Roberts’ opponent.

 The employees appealed the dismissal to the 4th Circuit, which heard arguments on May 16, according to Bloomberg News.

 Why Not Like Ike?

At that hearing, a lawyer for Facebook, which got involved as an amicus curiae, or “friend of the court,” urged the court to reverse the lower court’s decision and give the employees’ “likes” full constitutional protection.

 “Carter clicked the Like because he liked something. How is that any different than perhaps putting a sign in the yard saying ‘I Like Ike’?” one of the circuit judges said to a lawyer for the sheriff, who argued that liking a page could mean a lot of things, and all it does is allow the liker to see more of the page.

“It’s like opening a door into a room,” said the lawyer. “You can’t see what’s in there until you click on the button. That’s not speech.”

 Symbolic Speech Issue

The appellate court is being asked to decide whether something millions of people do on Facebook every day merits constitutional protection. 

Professor Eugene Volokh headshot

Professor Eugene Volokh

“The question is whether symbolic expression – such as the hitting of a ‘like’ button – is intended to and likely to convey a particular message to readers,” says Eugene Volokh, professor at the UCLA School of Law and keeper of The Volokh Conspiracy, a well-respected legal blog.

Volokh, who, along with other constitutional scholars, criticized the decision of the trial court last year, tells, “I expect the Fourth Circuit to reject the trial judge’s view that Facebook ‘likes’ aren’t symbolic expression for First Amendment purposes.” 

“The panel, I think, will say that they do convey a message, and thus are symbolic expression,” he predicts.

Some Private Employees Protected

The plaintiffs in this case could raise the First Amendment complaint because they were employed by the state, which generally must act in order to trigger the protections of the constitution. What if an employee of a private company likes a competitor’s page; can she be fired for that?

 Possibly, indicates Volokh. “The First Amendment doesn’t constrain employers,” he says, “but some state statutes – and, in some situations, some federal statutes – do indeed bar private employers from retaliating based on certain kinds of employee speech.”

It generally depends on the state where you live: “About half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation,” according to a recent article Volokh published on the topic.

This entry was posted in Law, suits and order and tagged . Bookmark the permalink.