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One Click Away from Legal Protection

By Allen Smith  6/8/2012
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Can just one click of a mouse result in legally protected activity?

No, a federal district court in Virginia ruled April 24, 2012, rejecting the claim of a deputy sheriff in Hampton, Va., who clicked on Facebook that he “liked” the opponent of his boss, a sheriff who was up for election and won. The sheriff then fired employees who had supported his opponent.

The employee claimed that clicking that he liked the opponent constituted free speech protected by the First Amendment.

The court rejected the claim, concluding that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”

The court added that where other courts have found that constitutional speech protections extended to Facebook posts, actual statements were made.

For example, in Mattingly v. Milligan, the plaintiff posted on her Facebook wall referring directly to the firing of various employees. The court held there that the post was an expression of constitutionally protected speech (Mattingly v. Milligan, No. 4:11CV00215 (E.D. Ark. 2011)).

And in Gresham v. City of Atlanta, No. 1:10-CV-1301-RWS-ECS (N.D. Ga. 2011), the court held that there was protected speech when the plaintiff posted: “Who would like to hear the story of how I arrested a forgery perp at Best Buy online to find out later at the precinct that he was the nephew of an Atlanta police investigator?”

In the Facebook “like” case, the Virginia district court distinguished its facts from Mattingly and Gresham, stating, “Both Gresham and Mattingly involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection” (Bland v. Roberts, C.A. No. 4:11cv45 (E.D. Va. 2012)).

Decision Criticized

But attorneys and legal scholars have resoundingly criticized the Bland ruling.

Jeff Hermes, director of the Digital Media Law Project at Harvard’s Berkman Center for Internet & Society in Cambridge, Mass., told SHRM Online on June 5, 2012, that he disagreed with the decision. Even though clicking on “like” was a simple act, it was an expression of speech, he asserted. The employee was adopting the speech of the thing that he or she liked, Hermes elaborated.

He noted that there are numerous decisions where simple and even nonverbal acts constituted protected free speech, such as black armbands to protest the Vietnam War (Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)) and flag burning (Texas v. Johnson, 491 U.S. 397 (1989)).

While First Amendment protections apply to public, not private, employees, employers in the private sector should be aware that an employee’s selecting “like” on Facebook constituted concerted activity protected by the National Labor Relations Act, according to a National Labor Relations Board (NLRB) administrative law judge decision (Three D LLC and Sanzone, Case No. 34-CA-12915 (NLRBA ALJ 2012)), Hermes noted.

Venkat Balasubramani, an attorney with Seattle’s Focal PLLC and a blogger on Professor Eric Goldman’s Technology and Marketing Law Blog, also criticized the Bland ruling. “In my view, the court ignored the overall social context of a ‘like’ in the online world. It’s possible people like a page for reasons other than expressing support for it, but in many situations, this is the case,” he said. “A ‘like’ ends up being a public statement. … The court took a very narrow view of what constitutes speech in this context and one that doesn’t take into account the relevant First Amendment interests.”

Balasubramani remarked that “activity online may seem menial, but taking employment action in response to it can be risky.” He added, “Employers have to watch out that they don’t infringe on an employee’s right to engage in advocacy/collective bargaining. The NLRB has been fairly aggressive in this regard.”

Goldman, a professor at Santa Clara University School of Law and director of the High Tech Law Institute in Santa Clara, Calif., thought that the court in Bland “was completely wrong on the constitutional question.” The employee was engaged in political speech when he endorsed the boss’s rival publicly by clicking “like,” and if he was fired for his political speech, he “should absolutely qualify for legal protection. Among other things, the court misunderstood how Facebook’s technology worked; the court didn’t realize all of the ways that ‘liking’ a page had communicative effects.”

Goldman told SHRM Online: “The case is most interesting to public employers, because it would be easy for public employers to punish their employees for constitutionally protected activity on social networks. However, the case has broader applicability to all employers. For example, if the employees had ‘liked’ the page of a labor organizing effort, the employer could run afoul of NLRB rules if the employer terminates or disciplines the employees for their social media activity.”

Allen Smith, J.D., is manager, workplace law content, for SHRM.
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