By Cynthia McNabb
In the 
ever-evolving legal environment regarding use of social media in and outside the workplace, a new case before the 4th Circuit is getting quite a bit of attention. In Bland v. Roberts, a deputy sheriff (along with five others) went on his Facebook page and, like millions of others every day, clicked the “like” button on a page he was viewing. The page happened to be a political page for a candidate running against his boss, the Sheriff of Hampton, VA. Once his boss was re-elected, Deputy Carter, along with Bland, et. all were terminated. The employer alleged that the employees were terminated for poor work performance and their support of the opposing candidate had disrupted the workplace.
The question before the 4th Circuit Court of Appeals is whether a click of a mouse to convey your approval or disapproval of something on Facebook deserves First Amendment protection. The district court ruled that “liking” something on Facebook does not rise to the level of meriting First Amendment protection because a mouse-click is not an “actual statement.” Further, the district court noted that where comments on Facebook have received First Amendment protection, the postings have been longer and have had more extensive content than hitting the “like” button.
The ACLU, along with Facebook, have both filed amicus briefs arguing that “liking” something on Facebook constitutes speech and is, in fact, the equivalent of putting a bumper sticker on your car or a political sign on your front line – all of which are protected speech activities. Legal experts have objected to the district court’s ruling, citing the fact that the First Amendment protects both long and brief statements as well as symbolic statements (with no words) like burning the flag. They also note that clicking the “like” button is expressive, conveys a viewpoint and, depending on how many “friends” a person has, disperses a statement to a wide audience.
Cline and Associates, along with many legal experts, are watching to see which way the 4th Circuit will rule. It is expected that the 4th Circuit will overrule the district court and grant a Thumb’s Up to giving the “like” button First Amendment Protection. In the interim, public employees should always be cautious of their activities on Facebook and use social media carefully.
By way of providing a few cautionary examples, several officers across the country have been disciplined in recent months for Facebook-related activities. For example, in New Jersey, an officer misused his mobile vehicle database to find out information about a woman who drove past him in an effort to “friend” her on Facebook. When the woman didn’t respond, the officer identified himself as the police officer who waved at her. She complained and the officer was suspended without pay and charged criminally with violations of motor vehicle and computer laws. In Mississippi, an officer was terminated after posting “Dear Mayor, can we please get a leader that understands that a department sends officers (to) the funeral of an officer killed in the line of duty?” Until the law is more clearly defined, public employees should be knowledgeable of any policy in effect with regard to social media use and contact their union representation or an attorney with any questions prior to posting questionable content.
