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Facebook Firings May Violate Federal Constitution

Although cases involving the legality of firing employees based on social media under labor law have become commonplace, government employers should also consider the Constitution when taking such disciplinary action.  Recently, the Fourth Circuit held that an employee’s “Like” on Facebook was protected speech under the First Amendment in Bland v. Roberts.

In that case, among other issues, a former deputy sheriff “liked” the Facebook campaign page of his boss’ opponent in the upcoming city sheriff’s campaign.  After his boss won the election, the deputy sheriff was not reappointed.  The deputy sued alleging he was fired for expressing his support for his boss’s opponent in violation of the First Amendment, which generally allows public employees to express their views without retaliation.  The suit included other plaintiffs with similar allegations.  The district court held the Facebook “like” did not constitute the kind of expressive speech that is protected under the First Amendment.  The Circuit Court reversed.

By way of background, a “like” on Facebook is when a user clicks a “like” button, represented by a thumbs-up icon, near Facebook content.  Once a user “likes” a page, the user is connected to that page, the page shows that the user liked it, and the page can post content into the user’s newsfeed.  The Court stated that once you understand what it is to “like” something on Facebook it is obvious that it is protected speech because the user “causes to be published the statement the User “likes” something, which is itself a substantive statement.”

The Court stated that especially in the context of a political campaign, the “like” was a statement in support of a candidate and the fact that it took only one click of a mouse to create the message has “no constitutional significance.”  The Court felt that the “like” on Facebook, including the symbolic nature of the “like” which produces a “thumbs up” icon when clicked, was the same as a political sign on a supporter’s lawn.

Although private employers are not impacted by this decision, they should remember that the National Labor Relations Board also considers a “like” on Facebook to be protected activity, having just decided a case on this issue, Three D, LLC d/b/a Triple Play Sports Bar and Grille and Jillian Sanzone.

This case reminds employers that although they may become incensed at various content posted on the Internet by their employees and may want to fire an employee immediately, they should not take disciplinary action without consulting competent counsel.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.