Many of us have heard stories of people losing their jobs over things said or posted on Facebook. The way we communicate has changed dramatically with the invention and increased use of the internet and employers, employees, and the law are still struggling to catch up.
This blog has already discussed a case in which a sheriff fired six of his employees, allegedly for clicking the “Like” button on the Facebook page of his political opponent. One of those workers, Daniel Ray Carter, filed a lawsuit against B. J. Roberts, the sheriff who fired him. The lawsuit alleged that Carter’s First Amendment rights had been violated and it was filed on behalf of Carter and the five other employees who were fired, allegedly for the same reason. The lawsuit sought compensation for lost back pay and front pay or for a reinstatement in their former positions.
Roberts, after his successful 2009 campaign for sheriff’s office, failed to reinstate six of his employees, all of whom had expressed support for his opponent. Roberts claimed he let some of the workers go because he wanted to replace them with sworn deputies. Others, he said, he fired because of poor performance and because he believed that their actions “hindered the harmony and efficiency of the office.” Despite these allegations, the employees he claims to have fired for poor performance both had consistent evaluations of “above average” or “outstanding” and neither of their direct supervisors or second-level supervisors had ever indicated a performance problem.
U. S. District Judge Raymond Jackson in Norfolk ruled in April 2012 that the “Like” button on Facebook is not equivalent to a statement, and is therefore not protected by the First Amendment. He dismissed the case and the plaintiffs appealed.
In his ruling, Jackson admitted that there have been other courts which have ruled that Facebook posts are constitutionally protected speech. However, he argues that, in those cases the speech in question involved “actual statements” rather than simply clicking a button.
Jackson’s ruling was criticized by constitutional lawyers who argued that other speech conducted online, such as uploading a video, or donating money to a campaign, is protected under the First Amendment, despite the fact that they involve nothing more than the click of a button.
The three-judge 4th Circuit federal appeals court disagreed with Jackson’s decision, ruling instead that Carter’s use of the “Like” button was both “pure speech” and symbolic expression. U.S. Circuit Judge William Traxler compared clicking the button to posting a political campaign sign in a front yard, which is protected under the First Amendment. “On the most basic level,” said Traxler, “clicking on the ‘like’ button both literally causes to be published the statement that the User ‘likes’ something with is itself a substantial statement. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”
The appeals court unanimously ruled that clicking Facebook’s “Like” button was protected speech. It therefore partially reversed the lower court’s ruling and reinstated the claims of Carter and two of the other employees who sued. It determined, however, that the three other employees had not provided sufficient evidence that their support of Roberts’s opponent was the reason they were not reinstated.
The court also ruled that Roberts is immune from any monetary judgment. As an “arm of the State” he is “immune from suit for claims against him in that capacity”. He is not immune, however, from the plaintiffs’ claims for reinstatement.
You can view the entire appellate decision here.
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