Social Media as “Speech”

Is a public-sector employee engaging in “speech” for purposes of the First Amendment when he “likes” a post on Facebook? A recent decision from the Eastern District of Virginia concludes that the answer is “no.” In Bland v. Roberts (E.D. Va. Apr. 42, 2012), the court held that employees in the Sheriff’s Department did not engage in protected speech by “liking” their boss’ political opponent’s Facebook page. When the boss won the election, he fired six employees, who filed suit alleging 1st Amendment retaliation.

One employee claimed to have sent a “statement of support” to the losing candidate during the campaign. The only evidence presented to the court about such support was that he “liked” the candidate’s Facebook page. In declining to find this expression entitled to constitutional protection, the court explained that:

merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements were within the record.

This decision has sparked a lot of fires around the blawgosphere. For example, on the Citizen Media Law blog, Arthur Bright analogizes “liking” to signing an online petition, which certainly would constitute speech. He argues that “liking” a post on Facebook relies on the same type of substantive expression. Venkat Balasubramani and Eric Goldman made this point on the Technology and Marketing Law Blog, as well.

I would not be at all surprised if the decision is appealed given the novel nature of the question (potentially, anyway), and the publicity the case has received. Until then, you may want to review other posts related to the effect of social media on the public-sector workplace. For example, this recent story about a firefighter’s Facebook post about the Trayvon Martin case.

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