EMPLOYEE FIRST AMENDMENT: “LIKING” On Facebook Is Not Protected Speech

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“Privacy” in Web 2.0 is an elusive concept. The Internet enables us to improve communication, erase physical barriers and expand our universe. Its absorption into our society has been extraordinary and seemingly limitless. It touches nearly every part of our lives from job hunting to dating to establishing and maintaining relationships. Acceptance brings a decrease in skepticism. You may assume that the same laws or societal rules that protect your privacy in the physical world apply to the digital world as well; but, the Internet remains largely unregulated and the policies governing it unwritten. The law is trying to play catch-up and falling further and further behind.

Courts largely have taken a hands-off approach to regulating the Internet and online privacy in favor of free speech. Although the federal government is increasingly interested in regulating the Internet, particularly with respect to child pornography and gambling laws, the law generally views the Internet as a giant bulletin board. With that approach anything you post or contribute on the web is “published” and, therefore, you cannot have an expectation of privacy. Rather than the early days of anonymous AOL chat rooms, Web 2.0 pioneers (e.g., Facebook, Twitter, Youtube, and blogs) and their users thrive on user content linked to an identified user. We have no interest in the opinions and thoughts of anonymous voices, but those of our friends, family and those we trust or respect is invaluable. Word of mouth is the most effective advertising and “Liking” on Facebook in the Web 2.0 equivalent, the difference being that everything on Web 2.0 is public. Badmouthing the boss in hushed lunchtime conversations are private moments of catharsis for disgruntled employees; badmouthing the boss on Facebook, regardless of your privacy settings, is a loud shot across the bow for all to hear. Six employees in the Hampton, Virginia Sheriff’s office recently learned the consequences of the latter. You must assume that anything you do on the Internet is, first, visible for all to see and, second, irrevocable.

Daniel Carter, Jr., David Dixon, Robert McCoy, John Sandhofer, Bobby Bland and Debra Woodward (the “Plaintiffs”) were employed in the Hampton Sheriff’s Office, the first four as sworn, uniformed deputy sheriffs. The Sheriff, B.J. Roberts, was slated for reelection in November 2009. The Plaintiffs claimed that the Sheriff used his authority to bolster his reelection efforts, including using employees to manage his political activities, using prisoners to set up campaign events and forcing his employees to sell and buy tickets to campaign fundraisers. Plaintiffs contended that in late 2009 the Sheriff learned that a number of his employees were actively supporting Jim Adams, one of the Sheriffs opponents in the elections. The Plaintiffs further alleged that the Sheriff learned that each of them affirmatively expressed their support for Adams by, in part, “Liking” Adams’ Facebook page.

According to the Plaintiffs, after learning of their support of his opponent, the Sheriff called a meeting in which he informed his employees that they should get on the “long train” with him rather than riding the “short train” with his opponent. The Sheriff won the November 2009 election, and he decided not to retain the Plaintiffs, citing a reduction in the number of sworn deputies allocated to him and contending that he wanted to replace the civilian employees with sworn deputies and stating that the plaintiffs “hindered the harmony and efficiency of the Office.”

On March 4, 2011, the Plaintiffs filed suit in the U.S. District Court for Eastern District of Virginia against the Sheriff alleging that he violated their first Amendment rights to freedom of speech and freedom of association when he fired them. Byland, et. al., v. Roberts Case No. 4:11-cv-ooo45-RAJ-TEM. The Sheriff Defendant moved for summary judgment arguing, in part, that the Plaintiffs had not adequately alleged protected speech under the Constitutions. Public employee expressive speech is protected under First Amendment. The Court determined that the Plaintiffs did not have a case because they did not show expressive speech,” the first prong of the above test. “Liking” on Facebook was determined not to be speech: “Merely ‘Liking’ a Facebook page is insufficient speech to merit constitutional protection.” The Court further explained, “ In Cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record. . . . Facebook posts can be considered matters of public concern, but not in this case.” Bear in mind that this was a narrow issue in a larger case and retaliatory termination, if proven, will not be upheld. Additionally, keep in mind that the legal standard applicable to public employees is not the same as in the private sector; private employees have less protection.

While it is unclear whether the Plaintiffs were terminated in retaliation, from the Court’s decision it is clear that concepts of speech , and protected speech, with respect to the Internet and Web 2.0 are still evolving and far from settled. Even where protection for expressive speech exists (i.e., public employees), in Web 2.0 it is uncertain what qualifies as speech. Although not at issue in the case, the most telling fact is that the Sheriff was aware that the employees “liked” his opponent – we can guess how that may have factored into his personnel decisions. Whereas the Internet and Google search knocked down expectations of privacy as to identity and past deeds, Web 2.0 users, for better or for worse, actively upload their thoughts for public consumption. Navigate the Internet with mindset that everyone will see everything you do.

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