Pillsbury Winthrop Shaw Pittman

Free speech protection for Facebook ‘likes’ by public employees

By Kelly W Craven

Last week, in Bland v Roberts, the US Court of Appeals for the Fourth Circuit handed a constitutional victory to Facebook and two plaintiffs who lost their jobs after displaying online support for the incumbent’s opponent in a sheriff’s election. Reversing the district court decision, which said that ‘liking’ a Facebook page was not sufficient ‘expressive speech’ to warrant First Amendment protection, the appellate court ruled that the act was ‘pure speech’ as well as symbolic expression.

In 2009, Sheriff B J Roberts of the Hampton Sheriff’s Office in Virginia ran for re-election after having served for 17 years. He was opposed by Jim Adams, who retired from the sheriff’s office as a lieutenant colonel to run for election. Upon his re-election, Roberts reappointed all but 12 employees. Six of those subsequently sued for retaliation and violation of their First Amendment rights to support his political opponent. Two of those fired employees, deputies Daniel Carter and Robert McCoy, claimed they were punished for ‘liking’ Adams’ Facebook campaign page. 

The evidence of Roberts’s animus was strong. During a shift change speech, Roberts expressed his disapproval of employee support for Adams on Facebook, claiming that he would be sheriff for as long as he wanted, indicating that Adams’ train was the ‘short train’, and implying that open allegiance with his opponent would cost people their jobs. Roberts specifically told Carter, ‘You made your bed, and now you’re going to lie in it — after the election, you’re gone.’…

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