Whistleblower Law Blog

Fourth Circuit: Facebook “Like” Is Protected Speech in Retaliation Case

Clicking “Like” on Facebook can be a protected activity in a workplace retaliation case, a federal appeals court said, confirming that employers must treat workers’ online behavior with the same respect as its offline equivalent.

In Bland v. Roberts the U.S. Court of Appeals for the Fourth Circuit ruled that a former Virginia sheriff’s deputy, Daniel R. Carter, Jr., could go ahead with his retaliation complaint against the sheriff of Hampton, Va. Mr. Carter had claimed that his former boss deprived him of First Amendment rights by refusing to reappoint him after he “liked” the Facebook page of an electoral rival.

Along with five colleagues who also claimed retaliation by Sheriff B.J. Roberts, Mr. Carter sought reinstatement or damages under Section 1983 of the U.S. Code.

A lower court granted summary judgment against all six plaintiffs last year, finding in Mr. Carter’s case that a mouse click is “insufficient speech to merit constitutional protection.” On September 18 the Fourth Circuit disagreed, reinstating the case for three of the plaintiffs.

The appeals court found that Mr. Carter engaged in “pure speech” when he liked the Facebook page of the sheriff’s rival,  sending an “unmistakable” message of support for his candidate. “That a user may use a single mouse click to produce that message … instead of typing the same message … is of no constitutional significance,” it held.

The court also found that Facebook likes are protected as “symbolic expression” — with the resulting thumbs-up  icon acting as “the Internet equivalent of displaying a political sign in one’s front yard.”

It was the strongest signal yet that employees don’t forfeit any legal rights when they venture online. The decision echoed a similar holding in late 2012 by the National Labor Relations Board (NLRB). In Hispanics United of Buffalo, Inc., the NLRB found that an employer acted illegally when it fired five workers for responding to a co-worker’s allegations in a Facebook discussion.

“Although the employees’ mode of communicating their workplace concerns might be novel … the appropriate analytical framework … has long been settled,” the NLRB said, holding that the Facebook discussion was a “concerted activity” protected by the National Labor Relations Act.

Mr. Carter is hardly out of the woods: The Fourth Circuit decision only gets him and two fellow deputies to trial. As a public official, the sheriff isn’t necessarily barred from firing people for political reasons; it will turn on whether loyalty is “an appropriate requirement” for a particular job. That test that could go either way for the deputies, the court said, conceding that its own rulings on the issue had been muddled.

Still, the court showed no confusion about employee participation in social media: Like the U.S. Supreme Court when it considered the Communications Decency Act, the Fourth Circuit said it “rejected the notion that online speech is somehow not worthy of the same level of protection as other speech.”

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