BLAND V. ROBERTS: FOURTH CIRCUIT HOLDS THAT “LIKING” ON FACEBOOK CONSTITUTES PROTECTED SPEECH

Regular readers of the Employment Essentials blog know that we frequently post articles about the interplay between the workplace and social media.  Most of our social media posts relate to the National Labor Relations Board’s (“NLRB”) frequent examination of the topic.  In fact, two years ago this month, I posted an article about a decision from an Administrative Law Judge with the NLRB Division of Judges who found that Facebook postings constituted protected activity under the National Labor Relations Act (“NLRA”).  

Now, two years later, in one of the first major opinions by a federal Court of Appeals addressing social media activities, the Fourth Circuit, which is the federal appellate court that covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia, recently held that “liking” something on Facebook constitutes protected speech pursuant to the First Amendment.  Although the decision clearly has a significant impact on government employers, it likely foreshadows how other courts and administrative bodies will treat the issue for private employers.   

In Bland v. Roberts, No. 12-1671, 2013 WL 5228033 (4th Cir. Sept. 18, 2013), the Fourth Circuit considered whether the Sheriff of the City of Hampton, Virginia had retaliated against a number of employees of the sheriff’s office because those employees did not support the incumbent sheriff in his reelection campaign.  Some of the employees had participated in traditional campaigning activities against the incumbent, such as handing out flyers, placing yard signs, and attending campaign events.  Those activities are clearly protected by the First Amendment. 

In addition to the traditional campaigning activities, one employee also “liked” the opposing campaign’s website on his Facebook profile.  The sheriff argued that this employee’s discharge was not wrongful because “liking” a political candidate on Facebook is not protected by the First Amendment, and the district court agreed.  The employees appealed the decision to the Fourth Circuit, and the appeal attracted national legal attention because of the novelty of the issue.  Both the American Civil Liberties Union and Facebook Inc. were among organizations that filed friend of the court briefs urging recognition of the conduct as protected by the First Amendment. 

Given the relative newness of the technology, the Fourth Circuit spent several paragraphs explaining the process of “liking” an item on Facebook.  The court noted that “[l]iking something on Facebook ‘is an easy way to let someone know that you enjoy it.’”  When the plaintiff “liked” the Facebook campaign page for the sheriff’s opponent, the following occurred:  the campaign page name and photo of the candidate appeared on the plaintiff’s Facebook profile; a link to the campaign page was added to the plaintiff’s profile; an announcement that the plaintiff “liked” the campaign appeared in news feeds of the plaintiff’s Facebook friends; and the plaintiff’s name and profile photo were added to the campaign’s Facebook page list of “People [Who] Like This.”  Thus, the Fourth Circuit concluded that “liking” something is a substantive statement about the user’s opinion about a particular topic.  The Fourth Circuit reasoned that “[o]nce one understands the nature of what [the employee] did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech.”  Accordingly, the employee could proceed with his claim that he was unlawfully discharged in retaliation for engaging in political speech.

Obviously, this decision has important implications for all government employers.  Although not the majority rule, some states have concluded that private employers cannot discipline employees for exercising their free-speech rights.  This decision would have similar implications for those states that protect the speech rights of private employees.  

This decision may also foreshadow how courts will examine social media activity outside of the free speech context.  As noted above, in the initial decisions examining the issue, the NLRB has concluded that Facebook posts constitute protected activity.  The NLRB has not addressed whether “liking” something on Facebook is protected.  That issue is currently pending before the NLRB, and the Fourth Circuit’s decision may predict how the NLRB will rule on the issue.  Likewise, although there are few reported decisions to date, courts have concluded that Facebook postings constitute protected activity for purposes of federal and state anti-retaliation laws.  For example, in Deneau v. Orkin, LLC, No. 11-00455-B (S.D. Ala. May 20, 2013), a federal court in Alabama assumed for purposes of a motion for summary judgment that an employee’s posting on Facebook inquiring about “a good EEOC lawyer” constituted protected activity under the anti-retaliation provisions of Title VII of the Civil Rights Act.  

Although Facebook has been the social media site at the center of these decisions, employers should recognize that conduct on other social media platforms will also likely be considered protected activity.  For example, a tweet on Twitter or a video on YouTube about working conditions will likely be treated the same as a Facebook post. 

Of course, employers are not always barred from disciplining or taking other action against employees who engage in social media activities.   Under state and federal anti-retaliation laws, even when employees engage in protected activity, an employer can take disciplinary or corrective action for legitimate, non-retaliatory reasons.  Similarly, under the NLRA, an employer may have substantial and legitimate business reasons that outweigh an employee’s rights that justify a response to an employee’s social media activity.  However, the employer will bear the burden of proving that its actions were justified.  

The bottom line for all employers is that courts and administrative agencies will likely consider social media activity to be speech.  Although the work-related comments or activities on social media may not be protected by the First Amendment, the activity could be protected by some other federal or state law.  Hence, employers must exercise caution when responding to any such activities by employees.  

 

Joseph Leonoro concentrates his practice in matters involving labor and employment law.
 
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