\u00a0It 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\u2019s dismissal of their case<\/a> in April 2012. The employees \u2013 two civilians and four uniformed deputy sheriffs \u2013 had attended an election-season cookout with the opponent, told others about their views, and \u201cliked\u201d the opponent\u2019s Facebook page.<\/em><\/p>\n \u00a0After 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.<\/em><\/p>\n \u00a0The trial court ruled in favor of Roberts, dismissing the employees\u2019 suit and holding that Facebook \u201clikes\u201d don\u2019t qualify as \u201cthe kind of substantive statement that has previously warranted constitutional protection.\u201d\u00a0 Because no actual \u201cstatement\u201d was made by clicking \u201clike,\u201d the First Amendment didn\u2019t protect the employees\u2019 expression of a political preference for Roberts\u2019 opponent.<\/em><\/p>\n \u00a0The employees appealed the dismissal to the 4th<\/sup> Circuit, which heard arguments on May 16, according to Bloomberg News<\/a>.<\/em><\/p>\n \u00a0Why Not Like Ike?<\/em><\/strong><\/p>\n At that hearing, a lawyer for Facebook, which got involved as an amicus curiae, or \u201cfriend of the court,\u201d urged the court to reverse the lower court\u2019s decision and give the employees\u2019 \u201clikes\u201d full constitutional protection.<\/em><\/p>\n \u00a0\u201cCarter clicked the Like because he liked something. How is that any different than perhaps putting a sign in the yard saying \u2018I Like Ike\u2019?\u201d 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.<\/em><\/p>\n \u201cIt\u2019s like opening a door into a room,\u201d said the lawyer. \u201cYou can\u2019t see what\u2019s in there until you click on the button. That\u2019s not speech.\u201d<\/em><\/p>\n \u00a0Symbolic Speech\u00a0Issue<\/em><\/strong><\/p>\n The appellate court is being asked to decide whether something millions of people do on Facebook every day merits constitutional protection.\u00a0<\/em><\/p>\n Professor Eugene Volokh<\/em><\/p>\n \u201cThe question is whether symbolic expression \u2013 such as the hitting of a \u2018like\u2019 button \u2013 is intended to and likely to convey a particular message to readers,\u201d says Eugene Volokh<\/a>, professor at the UCLA School of Law and keeper of The Volokh Conspiracy<\/a>, a well-respected legal blog.<\/em><\/p>\n Volokh, who, along with other constitutional scholars, criticized the decision of the trial court last year<\/a>, tells Lawyers.com, \u201cI expect the Fourth Circuit to reject the trial judge\u2019s view that Facebook \u2018likes\u2019 aren\u2019t symbolic expression for First Amendment purposes.\u201d\u00a0<\/em><\/p>\n \u201cThe panel, I think, will say that they do convey a message, and thus are symbolic expression,\u201d he predicts.<\/em><\/p>\n 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\u2019s page; can she be fired for that?<\/em><\/p>\n \u00a0Possibly, indicates Volokh. \u201cThe First Amendment doesn\u2019t constrain employers,\u201d he says, \u201cbut some state statutes \u2013 and, in some situations, some federal statutes \u2013 do indeed bar private employers from retaliating based on certain kinds of employee speech.\u201d<\/em><\/p>\n It generally depends on the state where you live: \u201cAbout half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation,\u201d according to a recent article<\/a> Volokh published on the topic.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" Maybe, maybe not. But this, from Lawyers.com, sounds so wrong to me. Wrong, as in, unfair. I hope the Fourth Circuit will fair it up. \u00a0Fired after a \u2018Like\u2019 \u00a0It was election season in November 2009, when Sheriff B. J. … Continue reading ![\"Professor](\"http:\/\/blogs.lawyers.com\/wp-content\/uploads\/2013\/05\/Eugene-Volokh-135.jpg\" "\\"Professor")
<\/a><\/em><\/div>\nSome Private Employees Protected<\/em><\/h2>\n