The Court of Appeals for the United States Fourth Appellate Circuit ruled this week that when a person “likes” a candidate’s page on Facebook, that person is engaging in political speech. The decision on that fine point meant that a Virginia Sheriff’s employee who was allegedly fired for “liking” the opponent of his boss could proceed with a civil rights lawsuit stemming from the firing.
The law is clear that with only a few exceptions, a government employee has a First Amendment right to engage in political speech. And a government employer can’t retaliate when the employee exercises that right. In this case at least two of the major facts weren’t subject to much dispute – the employee liked the sheriff’s opponent, and the employee got fired after the sheriff was re-elected.
But interestingly, what was in dispute was whether there was any speech at all. The sheriff argued that one keyboard click was not substantial enough to qualify as “political speech.” The trial court actually agreed with that argument. The appellate court, thought seemed to have a better grasp on what’s involved in “liking” something. In what can best be described as a “Facebook for Dummies” section of the opinion, the court walked through what happened when the plaintiff clicked that he liked the opponent’s page. As the court noted:
Here, Carter visited the Jim Adams’s campaign Facebook page(the “Campaign Page”), which was named “Jim Adams for Hampton Sheriff,” and he clicked the “like” button on the Campaign Page. When he did so, the Campaign Page’s name and a photo of Adams – which an Adams campaign representative had selected as the Page’s icon – were added to Carter’s profile, which all Facebook users could view. On Carter’s profile, the Campaign Page name served as a link to the Campaign Page. Carter’s clicking on the “like” button also caused an announcement that Carter liked the Campaign Page to appear in the news feeds of Carter’s friends. And it caused Carter’s name and his profile photo to be added to the Campaign Page’s “People [Who] Like This” list. Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech.
As a practical matter, if you work for an elected official, you may want to avoid liking your boss’s opponent or otherwise taking to social media to express your preference. But, if you ignore my advice (and you wouldn’t be the first one to do that) at least you might have some legal support for your wrongful termination suit.