Maria Gresham v. City of Atlanta et al., case number 12-12968, in the US Court of Appeals for the Eleventh Circuit & Bland v. Roberts, case number 12-1671, in the US Court of Appeals for the Fourth Circuit

Decision: In October 2013, the US Court of Appeals for the Eleventh Circuit affirmed the dismissal of an Atlanta police officer’s claims that the city and its police chief violated her First Amendment rights by denying her a promotion while she was under investigation for criticizing a colleague’s performance on Facebook. The plaintiff, Maria Gresham, had no protectable First Amendment rights in her Facebook post because the post raised a reasonable possibility of disruption of the department’s legitimate interests given that “public accusations of unethical conduct against fellow officers would have a natural tendency to endanger the esprit de corps and good working relationships amongst the officers.”

Impact: This decision is the second in recent weeks to address whether an employee’s Facebook activity is protected speech under the First Amendment. In Bland v. Roberts, the Fourth Circuit Court of Appeals held that a deputy sheriff could not be fired for “liking” the Facebook page of the current sheriff’s opponent because clicking Facebook’s “Like” button is speech protected by the First Amendment.

The Fourth Circuit’s decision could also have an impact on a case currently pending before the NLRB, Triple Play Sports Bar (34-CA-012915). The issue before the NLRB is whether clicking the “Like” button is protected by the National Labor Relations Act. Given the Fourth Circuit’s ruling that clicking the “Like” publishes an expression of support that is a “substantive statement,” it appears likely that the NLRB will find the action protected activity under the NLRA. The NLRB has also recently decided cases involving private employers’ discipline of employees for their Facebook activity, in most cases finding that the discipline infringed on the employees’ rights under the NLRA to engage in concerted protests or complaints about working conditions. However, like the Eleventh Circuit, the NLRB has not protected employees who post items on Facebook that complain about their employment but that are not directed at co-workers and to which co-workers never responded.