Employers can no longer fire employees for clicking Facebook’s ubiquitous blue thumbs-up symbol as it is protected speech under the First Amendment. In a unanimous, 81-page opinion, http://www.ca4.uscourts.gov/Opinions/Published/121671.P.pdf, the Fourth U.S. Circuit Court of Appeals reversed a lower court ruling that said merely liking a Facebook page was insufficient speech to merit constitutional protection. This opinion is in line with virtually ever other court that has looked at whether Facebook speech is real speech.
This retaliation case involved Virginia sheriff B.J. Roberts firing six of his employees who had supported his opponent in the election for his reelection. One of these employees was deputy sheriff Daniel Ray Carter who had clicked the “like” button on the Facebook page of his bosses’ political opponent. After Roberts won the election, he fired the six employees, claiming they were let go because he wanted to replace them with sworn deputies, they were poor performers and/or his belief that their actions “hindered the harmony and efficiency of the office.” Carter claimed that his “like” on Adam’s campaign page led to his dismissal. The other five employees alleged more conventional First Amendment issues including that their free association rights were violated when they were dismissed for supporting the sheriff’s opponent.
The U.S. District Court judge originally ruled that while public employees are allowed to speak as citizens on matters of public concern, clicking the “like” button does not amount to expressive speech. The judge drew a bright line between actual words and statements and symbolic gestures. In other words, clicking a button is not the same as actually writing out a message and posting it on the website.
The three-judge appeals court panel disagreed, ruling that “liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”
The three-judge appeals court panel went on to say, “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….That a user may use a single mouse click to produce that message that he likes the page instead of typing the message with several individual key strokes is no constitutional significance.”
The lesson for employers is to be careful when making employment decisions based on what you see on Facebook. The issue is more problematic for public employers who can no longer fire employees for clicking “like”, but even non-union private employers need to make sure their social media policies and employment decisions do not violate the National Labor Relations Act. Similarly to “liking” an opponent, “liking” a complaint from a co-worker about working conditions cannot be the basis of a termination.