In April, US District Judge Raymond Jackson in Norfolk, Va., threw out a wrongful termination suit by six former employees of the Hampton Sheriff’s Department. They said their firing last year was retaliation for “liking” the political opponent of Hampton Sheriff B.J. Roberts in an election.
Judge Jackson said that, while public employees can speak as citizens about public concerns, meaning it is constitutionally protected speech, the privilege does not extend to symbolic expression – such as clicking a like button to follow a certain cause, person, or group.
“Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection,” Jackson wrote in his ruling.
Sheriff Roberts fired the deputies following the election, which he won. According to the appeal brief for the deputies, he had issued a warning before the election that they stay off the Facebook page of his opponent, which they said indicated their firings were linked to their social-media actions. Roberts told the Associated Press that the terminations resulted from poor job performance and that their actions online “hindered the harmony and efficiency of the office.”
The six deputies are appealing the court ruling to the Fourth Circuit Court of Appeals. On Monday, the ACLU filed an amicus brief supporting the appeal. That brief describes Jackson’s conclusion, distinguishing symbolic action from written postings, as “erroneous.”
“Under the district court’s reasoning, affixing a bumper sticker to your car, pinning a campaign pin to your shirt, or placing a sign on your lawn would be devoid of meaning absent further information, and therefore not entitled to constitutional protection because of the minimal effort these actions require. All of these acts are, of course, constitutionally protected,” the brief reads.
In its own amicus brief, filed Monday, Facebook said Jackson’s ruling was “based on an apparent misunderstanding of the way Facebook works” and that the “resulting decision clashes with decades of precedent and bedrock First Amendment principles.” The social network tallies about 3 billion likes and comments every day from 500 million users, the company says.
The judge’s ruling “can have a big effect in narrowing what we define as speech and putting on notice all kinds of employees, including some in the private sector, that speech isn’t speech unless” it’s oral or written, says Bruce Barry, a professor of management and sociology at Vanderbilt University in Nashville and author of “Speechless: the Erosion of Free Expression in the American Workplace.”
Employees in the private sector generally face stricter rules regarding social-media use, with some employers monitoring online behavior and even, in some cases, restricting social-media access in the workplace. However, those policies have been challenged when they’ve been linked to retaliation against the employee, and in some cases, the courts have ruled that specific policies are too broadly written.
Last year, the National Labor Relations Board settled with ambulance company American Medical Response following the company’s firing of a Connecticut driver after she posted negative comments about her supervisor on Facebook. The negative comments, the NLRB said, were protected speech under federal labor laws, and the company had to rewrite its social-media policy to correct some provisions that were “overly broad” and “unlawful.”
Public employees also have the right to express themselves online, but are typically not allowed to publicly campaign while at work, says Marcus Messner, a journalism professor at Virginia Commonwealth University in Richmond who specializes in social-media research. Mr. Messner says he does not expect Jackson’s ruling to be upheld but says if it is, “it will change how people interact on social media.”
“If this ruling is upheld, employees have to be worried that a very basic communication on a social-media platform can lead to their firing,” he says. “Most people know they should not be talking bad about their job or boss, but to have a political expression in your private life lead to your firing – I think that would change how we communicate online.”
It is not yet clear whether the Fourth Circuit Court of Appeals will hear the case.