Fourth Circuit Concludes Facebook “Like” is Speech

The 4th U.S. Circuit Court of Appeals has handed down an important First Amendment ruling involving social media – in a law enforcement case out of Hampton, Virginia.

The case, Bland et al v. Roberts, originally produced headlines that had many of us shaking our heads in disbelief as a US District Court upheld the right of Hampton Sheriff BJ Roberts to dismiss several employees ostensibly because they “liked” his opponent on Facebook.

The reality…. well…. it was not quite that simple… but nevertheless the issue of whether an employee can be dismissed (or not rehired) for liking the Sheriff’s opponent in an election was squarely before the court.

In an 81 page ruling issued today…. E I G H T Y – O N E  P A G E S… the 4^th Circuit reversed the trial court’s dismissal of three of the six plaintiffs and sent the case back to the court for further proceedings.

The down and dirty firefighter version:

1. Not all employees are the same – certain employees may be removed (or in this case not rehired) because they are not politically loyal. However, the employees in this case do not fit into this category.

2. The First Amendment (freedom of association and speech) prohibits an employer from retaliating against an employee who engages in protected political speech and the facts of this case could constitute unlawful retaliation

3. When a public employee engages in political speech as a private citizen he/she is entitled to great weight in the Pickering balancing test. In other words, the right of an employee to engage in political speech will in most cases outweigh the rights of the employer to silence the employee.

4. On Facebook, clicking like is “pure speech” for 1^st Amendment purposes. It is also symbolic speech and is subject to the same protections as any other type of speech.

5. Three of the six plaintiffs presented a sufficient factual basis for their cases to proceed to the jury, and three did not.

There was more… but from our perspective those are the key points.

For the Legal Eagles… it was 81 pages and I’ll try to distill it down using the court’s own language:

[T]he First Amendment generally bars the firing of public employees “solely for the reason that they were not affiliated with a particular political party or candidate”

[The] Supreme Court in Elrod created a narrow exception “to give effect to the democratic process” by allowing patronage dismissals of those public employees occupying policymaking positions.

We conclude that Carter, McCoy, and Dixon at least created genuine factual disputes regarding whether the Sheriff violated their association rights, but that Sandhofer, Woodward, and Bland did not.

Carter, McCoy, and Dixon all occupied the same position in the Sheriff’s Office. They were uniformed jailers and they held the title of sheriff’s deputy.

[W]e … must consider whether requiring political loyalty was an appropriate requirement for the effective performance of the public employment of the deputies before us in light of the duties of their particular positions.

We hold that at this stage of the litigation, the Sheriff has not demonstrated that the duties of Carter, McCoy, and Dixon … resembled those of “a policymaker, a privy to confidential information, a communicator, or some other office holder whose function is such that party affiliation [or political allegiance] is an equally appropriate requirement.” [Note: because the court concluded that the other three employees – Sandhofer, Woodward and Bland – did not show they were retaliated against due to protected speech the court did not consider whether their positions were protected from political loyalty requirements.]

Accordingly, he also has not demonstrated that political allegiance was an appropriate requirement for the jailers’ performance of their jobs.

Thus, we hold that the Sheriff was not entitled to summary judgment on the basis that he could terminate Carter, McCoy, and Dixon for their lack of political allegiance to him.

[Carter “liked” Roberts’ opponent, and posted a comment of support. McCoy posted a comment of support. Dixon’s vehicle had a bumper sticker supporting the opponent and he voiced his support for him to a supporter of the Sheriff.]

[Sheriff Roberts in campaign speeches] “expressed his disapproval with the decision of some to support Adams’s candidacy on Facebook.”

[As for Sandhofer the court concluded that the] evidence is simply too thin to create a genuine factual dispute regarding whether Sandhofer’s lack of political allegiance to the Sheriff was a substantial basis for his non-reappointment.”

The court concluded basically the same for Woodward and Bland, there was not enough proof that they engaged in (and were retaliated against because of) protected speech.

As for the First Amendment issue associated with clicking “like”:

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.

Carter’s speech was political speech, which is entitled to the highest level of protection. See Meyer v. Grant, 486 U.S. 414, 422, 425 (1988) (describing constitutional protection of “core political speech” as being “at its zenith”.

There was quite a bit more – particularly on 11th Amendment Immunity, qualified immunity, and whether the right in question was a "clearly established" constitutional right (as opposed to just an ordinary constitutional right… which apparently federal courts now allow to be violated with immunity… go figure).  The court ruled that due to ambiguity in a previous ruling the Sheriff has qualified immunity.

Here is a copy of the ruling in case anyone has a few hours… Bland v Roberts