A recent ruling from the 4th Circuit makes clear that a "like" on Facebook is considered free speech and, accordingly, protected under the First Amendment. Employers - in particular public employers - should be aware of this case when disciplining employees for social media use especially where the only action at hand was the endorsement of other posted content.
In Bland et al. v. Roberts, 2013 U.S. App. LEXIS 19268 (4th Circuit, September 18, 2013), Daniel Ray Carter, Jr., was employed as a deputy sheriff in Hampton, Virginia. During the election season when his boss, Sheriff B.J. Roberts, was running for reelection, Carter (and some of his co-workers) expressed support for Robert's political opponent by "liking" his campaign Facebook page. Upon learning of this, Roberts terminated the employees who had "liked" his opponent's page claiming the terminations were based on budget cuts and disruption of office dynamics.
Believing instead that they were terminated in retaliation for expressing their opinion in support of Roberts' rival, Carter and his co-workers brought suit in the district court claiming the termination violated their right to free speech under the First Amendment. While the district court agreed that Facebook posts could be protected under the First Amendment, the court ruled that merely "liking" something on Facebook did not rise to the level of protected speech because it was not a "substantive statement" that warranted constitutional protection.
The 4th Circuit reversed this determination holding that "liking" something someone else posts on Facebook was deserving of constitutional free speech protection. The court held that "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," of approval or support. The court further reasoned that "while liking the campaign page constituted pure speech, it also amounted to protected symbolic expression." In effect, the court determined that clicking the "Like" button on the campaign page of their boss' political opponent could be viewed as the "[i]nternet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech."
This decision is significant because it extends the applicability of First Amendment constitutional protections for employees using social media. "Likes" and "emoticons" - or other symbolic expression which goes beyond traditional speech - may be viewed as an endorsement statement and potentially protected as free speech. A case like this may also lend support for a future determination by the NLRB that workers may be engaging in protected concerted activity on social media if they express non-verbal support or approval through social media. And, it is worth noting here that absent any carve-outs, a determination by the NLRB of this nature would likely apply to public and private (as well as union and non-union) employers.
As a result, all employers should be particularly careful when investigating or taking disciplinary action against employees for social media communications to determine whether the conduct or speech is protected by the First Amendment. In order to minimize employer liability, it is advisable for employers to develop and implement a comprehensive social media policy educating employees on the proper use of social media and appropriate online conduct during the workday as well as during nonworking hours.