“Liking” something on Facebook is a form of speech protected by the First Amendment, the U.S. Court of Appeals ruled in Bland et al. v. Roberts, Appeal Number 12-1671, on September 18, 2013.  In doing so, the Court sided with three of six former deputy sheriffs in Virginia who sued for free speech violations, among other claims, after being terminated in violation of the First Amendment for “liking” the Facebook page of the incumbent Sheriff’s political opponent in an upcoming election for Sheriff. 

The Court’s published decision reverses in part an order granting summary judgment, and allows the 2011 claims of some of the plaintiffs against the Sheriff at Hampton Sheriff’s Department to move forward.  The terminated employees alleged that Sheriff Roberts, in violation of the First Amendment, terminated them in retaliation for expressing support for his political rival in a 2009 election. The Court reversed the order granting summary judgment on the issue of whether the First Amendment rights of the three former deputies had been violated, but disposed of the claims asserted by the other three, ruling that they failed to raise “a genuine factual dispute.”

On appeal from an order granting summary judgment against the terminated deputy sheriffs, the U.S. Court of Appeals unanimously reversed a ruling by a federal district court that had disposed of the lawsuit on the basis that a “like” on Facebook is “insufficient speech to merit constitutional protection.”  One of the issues addressed by the appellate court was whether a distinction exists between making actual comments on Facebook, as opposed to simply “liking” something posted by someone else on Facebook.  The district court in this case acknowledged that the First Amendment protects written statements made on Facebook, but put such written statements into a separate category as free speech, as such posts involved “actual statements.”  The appellate court disagreed and concluded that this distinction between written posts and a “like” on Facebook cannot be made.  The U.S. Court of Appeals wrote: “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.”  “Liking” the campaign page of the incumbent Sheriff’s political opponent, the Court of Appeals said, was the “Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.” 

It is important for public agency employers in California contemplating investigating, or taking disciplinary action against, employees to pause and consider whether the conduct the employer seeks to sanction is protected free speech.  If it is protected speech, there may be limits on what an employer can do in response.  To avoid inadvertently running afoul of employee legal rights, employers will benefit from educating employees about using the Internet responsibly.  For example, it is advisable that employers block employees from accessing certain materials on the Internet via the employer network, including access to social networking sites such as Facebook and Twitter.  Blocking such access serves to help reduce the risk of employees inappropriately using such sites during work hours.  It is also important that employers educate employees about appropriate and responsible behavior online, including during off-duty hours. Employees should also be on notice, via written policies, about the consequences of inappropriate on and off-duty behavior online.  The proper policies in place will help educate employees about the importance of responsible behavior online, and will help shield an employer from being exposed to liability.