In September, the U.S. Court of Appeals for the 4th Circuit held an employee terminated for liking the campaign page of his boss's political rival had engaged in constitutionally protected speech under the First Amendment. Although the case involved only public employees, the 4th Circuit's ruling in Bland v. Roberts is likely to inform other court and/or agency decisions seeking to assign legal significance to various forms of social media activity and may have a lasting and far-reaching effect on private-sector employers, as well.
The decision
In 2009, Sheriff B.J. Roberts of the Hampton Sheriff Department in Virginia ran for re-election to his post after serving as sheriff for 17 years. He was opposed by Jim Adams, a longtime lieutenant colonel in the same office, who resigned to run for election. During the campaign, two sheriff's deputies, Daniel Carter and Robert McCoy, expressed their support for Adams rather than Roberts via Facebook. Specifically, in late summer of 2009, Carter "liked" Adams' Facebook campaign page and authored and posted a message of encouragement. McCoy also posted an entry indicating his support for Adams' candidacy though he did not "Like" the Facebook page. Word of the two employees' Facebook activity spread quickly among others in the office and eventually reached Roberts.
Soon after learning of Carter and McCoy's Facebook activity, Roberts addressed his employees' support for Adams in several speeches he gave during various shift changes at the office. He expressed displeasure with the decision of some to support Adams and specifically communicated his disapproval of those who had endorsed Adams through Facebook. During one of these meetings, Roberts declared he would be sheriff for as long as he wanted and stated anyone who openly supported Adams would lose his or her job. Notably, after the meeting that occurred before Carter's shift, Roberts angrily approached Carter and told him: "You made your bed, and now you're going to lie in it. After the election, you're gone."
Roberts won re-election and reappointed only 147 of his 157 full-time employees. Six of the terminated employees, including Carter and McCoy, had expressed support in some form for Adams' campaign and were terminated. The six employees subsequently filed suit against Roberts in federal court in both his official and individual capacities alleging he had retaliated against them in violation of the First Amendment, which protects not only freedom of speech, but also the right to be free from retaliation by a public official for exercising that right. When deciding Carter's claim, the district court ruled in favor of the sheriff, holding liking something on Facebook was not speech but merely a "click of a button," distinguishing it from Facebook posts involving actual written statements, which may warrant constitutional protection.
The 4th Circuit reversed. It held liking a political candidate's campaign page was the "Internet equivalent of displaying a political sign in one's front yard" (which the Supreme Court has found to be protected speech) in that it communicates the Facebook user's "unmistakable" approval of the candidate and supports the campaign by associating the user with it.
Citing Facebook's website and its amicus brief, the court explained the "Like" button is a way for Facebook users to share information and let others know they enjoy certain content posted on Facebook. The court noted when Carter liked Adams' Facebook campaign page, the campaign page's name and icon—a photo of Adams—were added to Carter's profile, which all Facebook users could view. Carter's click of the campaign page's "Like" button also prompted an announcement that Carter had liked the campaign page to appear in the newsfeeds of his Facebook friends. Additionally, it caused Carter's name and profile photo to appear on the campaign page's "People Who Like This" list.
Therefore, the court reasoned, clicking the "Like" button at its most basic level publishes a substantive statement the user likes something and qualifies as pure speech. The fact the individual "uses a single mouse click to produce that message … instead of typing the same message with several individual key strokes is of no constitutional significance." Accordingly, the 4th Circuit held the district court's judgment for the sheriff was improper, particularly in light of the evidence indicating Roberts' awareness of and open hostility toward Carter liking Adams' Facebook campaign page.
Significance for employers
The 4th Circuit's decision in Bland v. Roberts most directly affects public employers, particularly those located in states subject to the court's jurisdiction (Maryland, North Carolina, South Carolina, Virginia and West Virginia). Under the 4th Circuit's ruling, public employees who like a candidate's Facebook page in the context of a political campaign likely will be found to have engaged in constitutionally protected speech that cannot serve as the basis for adverse employment decisions.
However, the decision's ramifications are not limited to the public sector. For one, the court's ruling may pave the way for a similar outcome in a dispute involving private employees, Triple Play Sports Bar and Grille, currently pending before the National Labor Relations Board (NLRB) in which the NLRB may need to decide whether an employee's Facebook "Like" constitutes protected activity under Section 7 of the National Labor Relations Act (NLRA).
Section 7 preserves the right of unionized and open-shop employees to engage in concerted activity, including discussing wages, hours and working conditions with other employees. In the Triple Play Sports Bar and Grille case, an employee posted a Facebook status detailing her employer's supposed failure to properly withhold the correct amount of taxes from her paycheck. A co-worker liked the status, and both employees were subsequently fired for substandard performance; however, an NLRB administrative law judge ordered reinstatement, explicitly ruling liking the employee's status amounted to "participation in the discussion that was sufficiently meaningful as to rise to the level of concerted activity."
When deciding the matter on appeal, the NLRB may well look to the 4th Circuit's precedent-setting opinion in Bland v. Roberts for guidance as both cases involve the interpretation of a Facebook "Like" as a form of speech and/or dialogue. Therefore, the effect of the Bland decision on the private sector may manifest itself in the form of a ruling made pursuant to the NLRA, a federal statute applicable to most private employees.
The court's decision also serves as a reminder that you need to be cognizant of your state's laws protecting employees' lawful off-duty conduct. For instance, many states prohibit employers from discriminating against employees for political activity and/or association, and some states have enacted laws insulating employees from adverse action at the hands of their employers for engaging in lawful off-duty conduct. In the wake of the Bland decision, you need to evaluate how a Facebook "Like" by an employee will be treated under such statutes and adjust disciplinary procedures and policies accordingly.
However, the particular set of facts at issue in the Bland case—an "unmistakable" showing of support for a political candidate via an employee liking a Facebook page dedicated solely to promoting the candidate's campaign—allows employers to retain some flexibility in meting out discipline to employees who like Facebook content involving several different statements and/or forms of expression, not all of which may be considered protected speech.
As such, we advise you to review and, if necessary, re-vamp your policies regarding social media to account for the standard set forth in Bland v. Roberts, as well as your respective state laws. Ideally, such policies will limit and/or prohibit decision makers and management personnel from accessing social media content posted by other individuals connected to the organization, particularly if they are subordinates, job applicants or employees under investigation for misconduct.
Implementing these restrictions minimizes the likelihood your otherwise legitimate and lawful (albeit unfavorable) employment decision will be imputed to any alleged animus toward an employee based on his or her Facebook activity.
Jason C. Kim is a partner and Judith Kong is an associate in the Labor and Employment Practice Group of Chicago-based law firm Neal, Gerber & Eisenberg LLP.
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