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Friday, September 20, 2013

Facebook 'Like' is Protected Speech


by Tommy Eden

Six deputies were not reappointed after Hampton, Va., Sheriff B.J. Roberts won reelection in March 2011. Each had clicked the Facebook's “Like” button for his opponent Jim Adams. The deputies claimed they were let go, or not reappointed, for supporting rival candidate Adams for the sheriff's job in violation of their First Amendment right to free speech. 

On September 18 the Fourth Circuit Court of Appeals ruled that clicking Facebook's “Like” button is speech covered by the First Amendment. The panel rejected the lower court's conclusion that “liking” a Facebook page was insufficient to merit constitutional protection.

The Fourth Circuit said that the deputies conduct in “liking” the campaign page of sheriff candidate Jim Adams qualified as speech and that expressing support for something via the like button was “itself a substantive statement…. the fact that such a message of support is communicated through a single mouse click rather than typed out through several individual keystrokes doesn't matter,” the court said.

“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,” the 4th Circuit panel held.

The case had amicus briefs from the American Civil Liberties Union, the National Association of Police Organization and Facebook Inc.  Facebook argued that liking a page is “core speech” and warranted constitutional protection. The Case is Bobby Bland v. B.J. Roberts in the U.S. Court of Appeals for the Fourth Circuit.

Common Sense Counsel: The 4th Circuit’s decision may also be a guide for how the NLRB will handle the question of whether an employee clicking the “like” button is protected concerted activity under the National Labor Relations Act. This case is a clear warning to any employer, public or private, who might want to minimize the expressive value of a “like” or similar social media action. Pressing a 'like' button is a statement, and if two employees are making a statement, the NLRB could consider that to be protected concerted activity.

An employer’s social media policy should clearly define the limitations upon employees’ work-related use of social media channels requiring: (1)  employees to identify their association with the employer whenever an employee is using social media to comment upon the employer’s products or services; (2) unless an employee’s blogging or online postings are officially sanctioned and reviewed by the employer, the employee should be required to use conspicuous disclaimers that his or her views do not represent the views of the employer; (3) cover issues such as the use of photographs and names of co-employees or customers; and (4)  employees should be reminded of the employer’s right to lawfully and respectfully monitor their social media postings and other online activities for compliance with the employer’s policies, but be careful in your policy not to restrict employees’ right to engage in “protected concerted activity” under the National Labor Relations Act.



Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com



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