U.S. Court Rules Facebook “Likes” Count As Free Speech

Imagine you work for sheriff in the city where you live. As the sheriff, your boss, is an elected official, he must run for re-election if he wants to keep his position. In any election there are opponents. If you think your boss’ opponent is a better fit for the job, you might include the opponent’s Facebook page in your newsfeed. If the opponent posts something you agree with, you might “like” on that status. But your boss sees that and fires you, saying, “You made your bed and now you’re going to lie in it – after the election, you’re gone.”

On September 18, 2013, U.S. Circuit Judge William Traxler of the 4th Appeals in Virginia overturned a previous ruling by District Judge Raymond Jackson that liking a Facebook page was “insufficient speech to merit constitutional protection.”

Facebook and the American Civil Liberties Union (ACLU) both filed friend of the court briefs in the case of Deputy Daniel Carter and Robert McCoy who were employed by the Hampton Sheriff’s Office in Virginia. They were fired by Sheriff B.J. Roberts specifically for liking a Facebook profile for Roberts’ opponent, Jim Adams. Roberts won the re-election and did not reinstate the plaintiffs. In the brief, ACLU’s Ben Wizner said, “The Constitution doesn’t distinguish between ‘liking’ a candidate on Facebook and supporting him in a town meeting or public rally.”

Courts making decisions like these set precedents for future rulings and it is these rulings that help create laws involving the use of technology and social media.  These days, the law can change quickly as technology continues to evolve at an exponential rate.  We previously wrote an article regarding social media and the law which you can read here.

State and local laws are constantly in flux so it may be a good idea to seek out the advice of an experienced labor and employment attorney before you make any decisions regarding your job related to your use of social media and online forums.  If you are concerned about your rights in the workplace, Henrichsen Siegel can help.  We represent clients in Washington, DC, Maryland, Virginia, Florida and Georgia.