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Social Media & Free Speech: Appeals Court Gives Facebook Thumbs Up

Score a victory for free speech on social media.

In case you missed it, the U.S. Fourth Circuit Court of Appeals in Richmond recently overturned a lower court decision in a closely watched lawsuit involving First Amendment protections on social media (Bland v. Roberts 12-1671).

The suit centered on state employees of a sheriff’s office who were fired for clicking “Like” on Facebook. The appeals court struck down a ruling by the circuit court judge stating that such social media activity is not protected free speech under the First Amendment.

This is a significant court decision because many people may take online free speech rights for granted, particularly with the proliferation of social media. However, uniform legal standards are still in dispute and hotly debated nationwide.

Insufficient Speech?

In the lower court ruling, federal district Judge Raymond A. Jackson of Newport News, Virginia, dismissed a lawsuit by two deputy sheriffs who asserted they were unlawfully fired for “Liking” the Facebook page of the sheriff’s political adversary.

Facebook stated in its amicus brief: “If Carter [deputy sheriff] had stood on a street corner and announced, `I like Jim Adams [sheriff’s opponent) for Hampton sheriff,’ there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection.”

However, the judge saw it differently.

In tossing out the case, Judge Jackson wrote: “Merely ‘liking’ a page on Facebook is insufficient speech to merit Constitutional protection.”

The decision, about a year ago, set off alarm bells for advocates of free speech and online privacy. It raised the question of whether public employees can legally be terminated for simply “Liking” something on social media even though their employer may find the content distasteful or simply disagree with it.

Appeals Court Gives Thumbs Up to Plaintiffs

At the time of the lower court ruling, which sanctioned the firings, I wrote:

  • “The issue of free speech on social media should neither be viewed lightly nor taken for granted. The world has already observed blatant social media censorship and blocking of Internet access to citizens in communist countries, like China, for example.”

  • “While legal scholars and attorneys have voiced varying views on this case, the conventional wisdom appears to be that pressing the “Like” button on Facebook is unequivocally protected free speech.”

Fortunately the appeals court agreed, ruling that clicking Facebook’s thumbs-up “Like” icon “is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

The court added, “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.”

While this ruling is good news, we should nonetheless be mindful that online free speech presents a plethora of novel legal issues in today’s fast evolving digital age.

Therefore, as traditional legal theory expands to address online free speech issues we should remain vigilant and cognizant of our constitutional rights on social media.

Bottom line: the judicial branch must continue to safeguard our cherished First Amendment freedoms whether online or off.


* All views and opinions are those of the author only.

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David B. Grinberg

Thanks very much for sharing that link, Henry. I think the author sums it up nicely:

  • “Facebook Likes can be convoluted creatures. In order to continue to see posts appear in our news streams, we need to click Like, whether that aligns us with candidates we detest or news we abhor.”
  • “But regardless of why we click Like, it shouldn’t come back to haunt us.”
  • “Facebook is now very much an outlet for speech that deserves protection, whether it’s to support a candidate or to follow news about, for example, cancer research.”
  • “We follow things. We Like things. We shouldn’t be punished for it.”
Peter Sperry

Two other points to remember:

1. Most public employees enjoy statutory job protection unequaled in the private sector. Most private employment is “By will” and neither employees nor employers are required to provide any reason at all for terminating the relationship.

2. The First Amendment only protects us from CRIMINAL sanctions by government for protected speech. All other noncriminal “punishments” from disapproval by others to job loss to expulsion from religious or social organizations as well as loss of some government jobs, are allowable under the First Amendment. For example, the First Amendment would prohibit criminal punishment of soldiers who joined a hate group (freedom of association) but they would lose any security clearances they might hold and booted out with an “other than honorable” discharge. As noted above, government employees’ ability to retain their jobs while expressing their opinion comes from statute not the constitution and there are some very critical exceptions. (Political speech in the workplace) And even government employees have no automatic right to competitive promotion if the deciding official believes they have exercised poor judgement in how they communicate.

David B. Grinberg

Excellent points, Peter. Thanks very much for the astute clarifications.

Just to reiterate, it’s my understanding that public employees are protected from social media activity during their non-work hours, especially if posts are not critical of the agency at which they work, or the government and President generally. I’m no lawyer, but is that about right from your vantage point?

Thanks again, Peter, for shedding more light on this important issue — much obliged!

Peter Sperry

David —

The big dividing line is “not at work”. Any “free speech” communications at work or on a work computer should be carefully considered. A quick noncontroversial reply to Govloop is probably ok (the timing of most of them indicate people at at work). More controversial communications on personal equipment from the office or while teleworking are more of a grey area.

As to content, most government employees are protected from adverse job actions for anything they say on their own time even if it is critical of their agency, the government or the President as long as they do not represent themselves as official representatives of any of these. But such comments may be remembered during consideration for promotion.