U.S. District Court determines Facebook likes are not considered speech.
If your employer is an elected official, you might want to steer clear of “liking” her or his political rival on Facebook, if the recent decision from the United States District Court in Virginia is any indication.
B.J. Roberts was first elected sheriff of Hampton, Virginia in 1992. In a 2009 election, the incumbent sheriff faced Jim Adams, who had recently retired from the department. Some of Adams backers were employed in the department during the run-up to the election, and six of them showed their support by attending a fundraiser and by liking the Jim Adams for Hampton Sheriff Facebook page.
After winning the election, Roberts purged his department of twelve employees, including the six Adams backers. The sheriff cited a shift in department resources and performance issues as cause for termination. The former employees filed suit in U.S. District Court alleging that Sheriff Roberts violated their First Amendment rights to freedom of speech and freedom of association.
The Court, however, found that a Facebook “like” is not considered protected free speech under the First Amendment because it is not expressive enough to constitute speech. Additionally, the former employees failed to prove their claim that their dismissals were in retaliation. In other words, the Court did not find enough evidence to suggest that the plaintiffs in the case were discharged for any reason other than those provided by Sheriff Roberts.
For more information on social media in the workplace, check out GovDocs’ post How the NLRB Could Shape Employers’ Social Media Policy.
