“Hey Boss, How Do You ‘Like’ Me Now?”

By: Dina Awad

Since the initial ruling of Bland v. Roberts in 2012, social media speech has been overcome by a chilling effect. A controversy emerged when Deputy Daniel Carter clicked the “like” button on a campaign page for his former employer’s rival in a 2009 election.[1] Shortly afterwards, his employer, Sheriff Roberts of Hampton, Virginia, told Carter, “You’ve made your bed, now you’re going to lie in it, after the election you’re out of here.”[2] Indeed, after the election yielded a victory for Roberts, Carter found himself discharged from his position and seeking recourse in the court system. [3] On April 24, 2012 the Eastern District of Virginia ruled that “liking” of a Facebook page was not constitutionally protected speech.[4] United States District Judge Jackson explained that a Facebook “like” was insufficient speech because it doesn’t “involve actual statements,”[5] as distinguished from the writing out of Facebook posts.[6]

The American Civil Liberties Union (“ACLU”) and Facebook filed amicus briefs that accompanied Carter’s appeal.[7] In its brief, ACLU wrote, “‘Liking’ something on Facebook expresses a clear message- one recognized by millions of Facebook users and non-Facebook users- and is both pure speech and symbolic expression that warrants constitutional protection.”[8] Legal practitioners and professors voiced their outrage regarding the Eastern District’s ruling.[9] Marquette University Law School Professor Paul Secunda sharply disagreed with the analysis, claiming it left him “speechless.”[10] Secunda compared a Facebook “like” to the protected expressions of clapping or giving someone the finger. [11]

On September 18, 2013, the Fourth Circuit Court of Appeals reversed the lower court’s decision. It unanimously held that a Facebook “like” is a form of speech protected by the First Amendment. [12] Chief Judge William Traxler found there was no distinction between hitting a “like” button and typing out a Facebook message- both can serve as protected expressions of support.[13] Traxler wrote, “Liking a political candidate’s campaign page communicates the user’s approval and supports the campaign by associating the user with it….it is the Internet equivalent of displaying a political sign on one’s front yard, which the Supreme Court has held is substantive speech.”[14] Carter’s lawsuit was reinstated. Although a victory for Carter would not entitle him to damages due to Roberts’ qualified immunity under the 11th amendment, Carter may reclaim his old position.[15]

This significance of this case is undeniable. First and foremost, it expands the scope of protected speech for employees. So long as it does not adversely affect workplace efficiency, employees are now entitled to more freely form their own electronic persona. Moreover, this decision may impact a case pending before the National Labor Relations Board, resulting in the finding that Facebook “likes” are entitled to National Labor Relations Act protections.[16] According to Morgan Lewis & Bockius LLP partner James Walsh, Bland v. Roberts suggests that employees who ‘like’ each other’s comments constitute a joining together and may be considered concerted activity by the NLRB.[17] Furthermore, this ruling will impact states that offer free speech protections to private employees, such as Connecticut.[18]

Undoubtedly, this will not be last time the courts and administrative agencies grapple with these issues. [19] Social media related employment disputes are becoming increasingly common, according to Bruce Barry, a professor of Management and Sociology at Vanderbilt University and author of 2007’s “Speechless: The Erosion of Free Expression in the American Workplace,” who characterizes social media as “ubiquitous.”[20]

Although Bland v. Roberts answers questions regarding the Facebook “like” as an expression of support, it overlooks the possibility that someone may “like” something on Facebook for other purposes. For instance, what if you “like” a page simply to track its activity? This ruling also sparks curiosity with regards to treatment of other social media activities, such as clicking the “heart” button on Instagram, “endorsing” a LinkedIn connection, or “retweeting” on Twitter.

Perhaps further expansion of employee-protected social media speech would be for the greater good. It would better serve the “checking value” theory of speech protection, which asserts that free speech serves a vital checking function against the abuse of power by public officials.[21] It could also support the “marketplace theory” of speech protection, which claims that the best goods and results are attained by the free trade of ideas. [22] Hence, an employee’s exposure to the competitive market and participation in the exchange of ideas may enhance an employee’s prowess, creativity, and strategy. Alternatively, such a stretch of constitutional protections may lead to chaos, animosity, and a decline in workplace efficiency. As social media activity increasingly collides with employer interests, courts and administrative agencies will be forced to make increasingly difficult decisions as they struggle to apply constitutional provisions to the ever-changing character of our labor force.


[1] Dominque Mosenbergen, Facebook ‘like’ Protected by First Amendment, Appeals Court Rules, The huffington post (Sep. 18, 2013) http://www.huffingtonpost.com/2013/09/18/facebook-like_n_3949132.html.

[2] Jonathan Stempel, Facebook ‘Like’ Deserves Free Speech Protection: US Court, NBC (Sep. 18 2013) http://www.nbcnews.com/technology/facebook-deserves-free-speech-protection-us-court-4B11187480.

[3] Dominque Mosenbergen, Facebook ‘like’ Protected by First Amendment, Appeals Court Rules, The huffington post (Sep. 18, 2013) http://www.huffingtonpost.com/2013/09/18/facebook-like_n_3949132.html.

[4] Jonathan Stempel, Facebook ‘Like’ Deserves Free Speech Protection: US Court, NBC (Sep. 18 2013) http://www.nbcnews.com/technology/facebook-deserves-free-speech-protection-us-court-4B11187480.

[5] Dominque Mosenbergen, Facebook ‘like’ Protected by First Amendment, Appeals Court Rules, The huffington post (Sep. 18, 2013) http://www.huffingtonpost.com/2013/09/18/facebook-like_n_3949132.html.

[6] Joe Palazzolo, Court: Facebook ‘Like’ is Protected by the First Amendment, the wall street journal (Sep. 18, 2013) http://blogs.wsj.com/law/2013/09/18/court-facebook-like-is-protected-by-the-first-amendment.

[7] Dominque Mosenbergen, Facebook ‘like’ Protected by First Amendment, Appeals Court Rules, The huffington post (Sep. 18, 2013) http://www.huffingtonpost.com/2013/09/18/facebook-like_n_3949132.html.

[8] Id.

[9] Doug Gross, Virginia Deputy Fights His Firing Over A Facebook ‘Like,’ Cnn (Aug. 13, 2012) http://www.cnn.com/2012/08/10/tech/social-media/deputy-fired-facebook-like/index.html.

[10] David Hudson, ‘Like’ is Unliked: Clicking on a Facebook Item Is Not Free Speech, Judge Rules, Aba journal (Sep. 1, 2012) http://www.abajournal.com/magazine/article/like_is_unliked_clicking_on_a_facebook_item_is_not_free_speech_judge_rules.

[11] Id.

[12] Dominque Mosenbergen, Facebook ‘like’ Protected by First Amendment, Appeals Court Rules, The huffington post (Sep. 18, 2013) http://www.huffingtonpost.com/2013/09/18/facebook-like_n_3949132.html.

[13] Joe Palazzolo, Court: Facebook ‘Like’ is Protected by the First Amendment, the wall street journal (Sep. 18, 2013) http://blogs.wsj.com/law/2013/09/18/court-facebook-like-is-protected-by-the-first-amendment.

[14] Jonathan Stempel, Facebook ‘Like’ Deserves Free Speech Protection: US Court, NBC (Sep. 18 2013) http://www.nbcnews.com/technology/facebook-deserves-free-speech-protection-us-court-4B11187480.

[15] Joe Palazzolo, Court: Facebook ‘Like’ is Protected by the First Amendment, the wall street journal (Sep. 18, 2013) http://blogs.wsj.com/law/2013/09/18/court-facebook-like-is-protected-by-the-first-amendment.

[16] Ben James, NLRB Might ‘Like’ 4th Circ. Facebook Ruling, Attys say, law 360 (Sep. 18, 2013) http://www.law360.com/articles/473855/nlrb-might-like-4th-circ-facebook-ruling-attys-say.

[17] Id.

[18] Id.

[19] Id.

[20] Joe Palazzolo, Court: Facebook ‘Like’ is Protected by the First Amendment, the wall street journal (Sep. 18, 2013) http://blogs.wsj.com/law/2013/09/18/court-facebook-like-is-protected-by-the-first-amendment.

[21] David Kohler & Lee Levine, Mass Media and the Law, 59-93 (2009).

[22] Id.

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