Status Update: Facebook “Likes” Receive Constitutional Protection

Social media issues arising out of the workplace are ever-changing. Your friends at Professional Liability Matters recently discussed the potential consequences to employees for posting objectionable personal information on Facebook. However, a novel decision from the Fourth Circuit Court of Appeals on Wednesday may turn the tables on employers who take retaliatory action against employees based upon their Facebook activity. Spoiler alert… Facebook “likes” are protected free speech under the First Amendment.

In Bland v. Roberts, 2013 U.S. App. LEXIS 19268 (Sept. 18, 2013), the Fourth Circuit considered an appeal from six plaintiffs who claimed to have been wrongfully terminated by a Virginia Sheriff for “liking” his electoral opponent on Facebook. The suit alleged that the Sheriff’s actions violated the plaintiffs’ First Amendment right to free speech. The District Court dismissed the plaintiffs’ claims on summary judgment, concluding that Facebook “likes” do not constitute speech. However, the Fourth Circuit reversed and concluded that “liking” something equates to a substantive statement worthy of constitutional protection. The Fourth Circuit continued that a public employee may establish that an adverse employment action violated her constitutional rights when the speech involved a matter of public concern important to the employee and the speech was a substantial factor in the employee’s termination. Based on this standard, the court concluded that the Sheriff’s decision to terminate constituted a violation of the plaintiffs’ constitutional rights.

Sure, the First Amendment considerations in Bland apply to public employees, but the case has broader implications. Employers considering employee discipline due to social media conduct must take caution. “Like” it or not, courts will continue to carefully evaluate the implications of social media in the workplace and employers must amend their risk management criteria to keep pace.