• Social Media, Free Speech and the Workplace
  • November 13, 2012
  • Law Firm: Dressman Benzinger LaVelle psc - Crestview Hills Office
  • In the legal world, social media is a rapidly changing and relatively new frontier.  In the areas of employment and labor law, judges are more frequently encountering traditional issues of harassment or discrimination but with the added twist of interactions between employees occurring outside of the office and in cyberspace instead.  In one recent case from a federal court in Virginia, a judge was faced with the issue of what actions online amount to "speech" that is protected by the First Amendment and what actions simply are not sufficiently speech such that they are entitled to protection.

    The facts of this case involve a sheriff, B.J. Roberts, who was running for re-election in 2009.  During the campaign, Roberts found out that several of his employees had backed his opponent, Jim Adams.  Some of them showed their support by clicking the "like" button on Adams' Facebook page.  Roberts won re-election and promptly fired all the employees who had "liked" Adams' page.  Roberts cited budget constraints, unsatisfactory work performance, and lack of "harmony and efficiency" in the office as the reasons for the firings.

    The terminated employees fought back and contended that Roberts retaliated against them for their protected political speech.  In court, the employees presented testimony that the sheriff told them to stay off his opponent's Facebook page or they would be terminated.  They argued that pressing a Facebook "like" button was speech protected by the First Amendment.

    The judge, however, disagreed with the employees and instead sided with the sheriff.  In his opinion, the judge wrote that "merely liking a Facebook page is insufficient speech to merit constitutional protection."  According to the court, the employees' activity was not protected political speech because no actual statements existed.  Simply clicking a button to express an opinion was not enough for the judge in this case.  This result has legal scholars buzzing with questions and disbelief.  There are many First Amendment cases that find constitutional protection for other forms of expressive gestures, such as clapping or giving the finger.  Many scholars believe that clicking a "like" button is analogous to these acts - simply another method of expression that is protected under the Constitution.  One professor also noted that the depth of speech, including how long or detailed it is, is not a criterion for determining whether the speech merits constitutional protection.  He observed that punching a ballot card on election day is a simple act too, but is considered the most basic form of political free speech.

    The case is not over, however, as the employees have already filed an appeal.  Regardless, the bottom line is that employers live in a world where their employees engage in social media expression daily.  Employers should use caution in taking action against an employee for their online expression.  This area of law is uncertain and ever-changing, so any decision to terminate an employee must be made after a full review of the circumstances regarding the employee's online activities.