Bland v. Roberts Reverses District Court’s Take on the Facebook “Like” Button.

The Fourth Circuit ruled yesterday that a public employee’s decision to “like” a candidate’s Facebook page amounted to free speech that is protected under the First Amendment. The Appellate Court’s decision in this closely watched case reversed the decision of the U.S. District Court for the Eastern District of Virginia and remanded it for further proceedings.

The decision of the Fourth Circuit arose out of an employment case involving six employees who alleged that they were not reappointed to their positions in the Hampton, VA Sheriff’s Office because they supported candidate Jim Adam’s campaign against Sheriff B.J. Roberts, the 17-year incumbent. One of the six employees, Daniel Ray Carter, Jr., alleged that his decision to “like” Candidate Adam’s Facebook page and post a supportive comment on it during the campaign led to his dismissal when Roberts was re-elected. A second employee also alleged his supportive comment on Candidate Adams’ Facebook page resulted in his non-reappointment.

In Bland, et. al. v. Roberts, the Fourth Circuit addressed the issue of whether “liking” a Facebook page or status constituted protected speech head on. The Court stated:

Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct  qualifies as speech. 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. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. 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.

Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. The distribution of the universally understood “thumbs up” symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy.

. . . .

In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech. Just as Carter’s placing an “Adams for Sheriff” sign in his front yard would have conveyed to those passing his home that he supported Adams’s campaign, Carter’s liking Adams’s Campaign Page conveyed that message to those viewing his profile or the Campaign Page.

(Citations and footnotes omitted).

Employees Should Still Exercise Caution in “Liking” or Posting to Social Media

While the decision of the Fourth Circuit is a victory for free speech advocates and employees who want to express their opinions on political issues, public sector employees should be careful in drawing broad lessons from this case. As the Court in this case acknowledged, the government, as an employer, can impose certain restraints against its employees’ free speech that it cannot impose on the public. In determining if a public employee’s speech is protected, the Fourth Circuit applies a three-part test that considers 1) whether the employee was speaking as a citizen on a matter of public concern or as an employee on a matter of personal interest; 2) whether the employee’s interest in speaking on a matter of public concern outweighs the government’s interest; and 3) whether the speech was a “substantial factor” in the negative employment action. To decide whether the employee’s interest in speaking on a matter of public concern outweighs the government’s interest in providing effective and efficient public services, a court will consider “the employee’s role and the extent to which the speech impairs the efficiency of the workplace.” For example, the Court noted that political patronage dismissals based on party affiliation are permitted where public employees are in “policymaking positions.”

However, the case makes it clear that, at least in the Fourth Circuit, “likes” on Facebook will be treated just like other, more traditional, forms of political and symbolic speech.

The entire (81-page) Bland v. Roberts decision can be found here.