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Getting fired for a Facebook 'like'

By MICHAEL KIRKLAND, Senior UPI Legal Correspondent   |   Aug. 19, 2012 at 3:30 AM   |   Comments

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WASHINGTON, Aug. 19 (UPI) -- How much freedom of speech do you have in a social network setting -- for instance, can you be fired if you click "like" on Facebook for something your boss doesn't like?

If you're an employee in the private sector, you certainly can. As one analyst puts it, private employers are "not constrained" by the free speech protections of the First Amendment, except in a very narrow area usually connected to union activity.

Public employees are protected by the First Amendment, but is clicking "like" on Facebook a form of protected speech?

A case involving public employees, working its way through the federal courts in Virginia, is getting a lot of attention, and may eventually reach the U.S. Supreme Court.

Daniel Ray Carter Jr. and five others were fired in 2009 by the sheriff in Hampton, Va., on the face of it because they weren't completely on board with his re-election.

The main plaintiff in the case, Carter, clicked "like" on the Facebook campaign page of Sheriff B.J. Roberts' political rival. The sheriff looked at Facebook and saw Carter's "like." After his re-election, Roberts fired Carter from his deputy sheriff's job.

Carter sued in 2011 but U.S. District Judge Raymond A. Jackson ruled in Newport News, Va., the First Amendment's free speech provision did not protect Carter's Facebook "like" because it was "insufficient speech to merit constitutional protection" and did not involve actual statements -- which have been protected in other cases involving Facebook and public employees.

In court, Roberts' attorney argued the firings were not retaliatory or improper, and Carter's intended audience was Adams' Facebook friends, not the public. But Facebook said in its friend-of-the-court brief supporting Carter's appeal of the summary judgment, "Roberts is mistaken as a matter of fact," because Carter had made his profile available to "the world at large."

In its brief, Facebook told the appeals court it "provides a free Internet-based service that enables its users to connect with their friends and family, to discover what is going on in the world around them, and to share what matters to them and to the people they care about. Facebook's members ['Users'] can share and publish their opinions, ideas, photos, and activities to audiences ranging from their closest friends to Facebook's over 950 million Users, giving every User a voice within the Facebook community."

Facebook said it tries "to create an online environment that facilitates communication, social connection, and the sharing of ideas, and in which Users can engage in debate and advocate for the political ideas, parties and candidates of their choice."

The social site said the judge's ruling "betrays a misunderstanding of the nature of the communication at issue and disregards well settled Supreme Court and [appeals court] precedent. Liking a Facebook page [or other Web site] is core speech: It is a statement that will be viewed by a small group of Facebook friends or by a vast community of online users.

"When Carter clicked the like button on the Facebook page entitled 'Jim Adams for Hampton Sheriff,' the words 'Jim Adams for Hampton Sheriff' and a photo of Adams appeared on Carter's Facebook profile in a list of pages Carter had liked ... the 21st-century equivalent of a front-yard campaign sign," the brief said.

Facebook said an announcement that Carter liked the campaign's page was shared with Carter's Facebook "friends," and Carter's name and photo appeared on the campaign's page in a list of people who liked that page.

In arguing that the appeals court should "vacate," or throw out, the judge's ruling, Facebook said, "If Carter had stood on a street corner and announced, 'I like Jim Adams for Hampton Sheriff,' there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of a computer's mouse, does not deprive Carter's speech of constitutional protection."

The American Civil Liberties Union filed its own friend-of-the-court brief to the appeals court supporting Carter. The court document takes major swipes at how the sheriff allegedly operated to maintain power.

"During his tenure, the sheriff used his authority to bolster his re-election efforts, including using employees to manage his political activities, using prisoners to set up campaign events and forcing employees to sell and buy tickets to campaign fundraisers," the ACLU brief said.

Told a number of his employees were supporting a rival, Roberts "called a meeting in which he informed all employees that they should support him because he was on the 'long train.'

"After the sheriff won re-election, he fired those employees who had supported his opponent. The sheriff attempted to justify his actions by claiming that he did not reappoint two of the plaintiffs -- civilian employees -- because he wanted to replace the civilian employees with sworn deputies," the ACLU brief said. "The sheriff claimed he fired the other four plaintiffs for unsatisfactory work performance or because he believed that their actions 'hindered the harmony and efficiency of the office.'

"'Liking' a political candidate on Facebook -- just like holding a campaign sign -- is constitutionally protected speech," the ACLU brief argued. "It is verbal expression, as well as symbolic expression. Clicking the 'like' button announces to others that the user supports, approves or enjoys the content being 'liked.' Merely because 'liking' requires only a click of a button does not mean that it does not warrant First Amendment protection. Nor does the fact that many people today choose to convey their personal and political views online, via Facebook and other social media tools, affect the inquiry."

Public employees generally have more freedom of speech than private employees, unless the public employee is in the armed forces. Nevertheless, the National Labor Relations Board has been moving to protect speech in the private sector -- as long as it concerns speech such as union organizing.

The Washington Post reported the NLRB, "a federal agency that brings labor-related complaints on behalf of workers, said it had seen the number of cases involving social media skyrocket from zero to more than 100 over five years."

How much protection the NLRB can give is problematic. The protection can differ from state to state.

In an analysis posted on FindLaw.com, Karen Sutherland of Washington state's Ogden Murphy Wallace P.L.L.C., points out public employees "have First Amendment rights in the workplace," but she knows of no Washington state case "where freedom of speech has been protected under the First Amendment in private sector workplaces."

Douglas E. Lee, writing for the First Amendment Center Online, said in his analysis in September last year: "In recent years, both public and private employers have experienced the disruption and despair that occurs when a disgruntled employee takes to Facebook to air his or her work grievances.

"Unlike public employers, however, private employers have felt free to discipline or fire these employees," he said. "Private employers, after all, are not constrained by the First Amendment and need not recognize anyone's freedom of speech. Moreover, private employers in most states and in most circumstances employ their employees at will, meaning the employers' management decisions cannot be challenged unless those decisions discriminate against an employee because of the employee's age, gender or other protected characteristic."

However, "the discretion private employers have enjoyed is diminishing," Lee added.

A report by Lafe E. Solomon, acting general counsel for the National Labor Relations Board, released in August last year said the "NLRB now maintains that the [National Labor Relations Act] protects some employee social-media activity," Lee said. "As a result, private employees now have more freedom of speech than their government counterparts.

"Intended to protect employees' right to unionize, the NLRA prohibits private employers from, among other things, interfering in employees' attempts to engage in concerted activity. These attempts, the board traditionally has held, include discussions among co-workers about the terms and conditions of their employment. As the board now is applying that tradition to today's technology, those employee discussions need not be private and may take place in social media open to all."

Solomon recounted the board's handling of 14 cases "in which unfair labor practice charges arose out of social-media postings or policies," Lee said. In half of those, the board found that the employers had violated the National Labor Relations Act. "In cases involving social-media postings, a fact critical to the board's determination was whether the postings were directed at or discussed with co-workers."

However, attorney Summer Murshid of Wisonsin's Hawks Quindel S.C. wrote in her own analysis for clients: "Private employers do not have an obligation to recognize their employee's free speech rights and because Wisconsin is an 'at will' employment state, a private employer may discipline or terminate you with or without a reason, as long as the adverse employment action is not based on your association with a protected class [i.e. disability, race, pregnancy, sexual orientation, etc.].

"This means that if your employer doesn't like what you are saying -- either on or off duty -- on your Facebook page, or Twitter account, or your blog, to a radio call in show or to your co-workers in the break room, you can be terminated and the First Amendment will not protect you."

Many Americans will look at the Carter case and wonder what all the fuss is about -- if you're going to be a deputy, don't you have to support the sheriff?

But as a 1993 article in the Page University Law Review points out, patronage isn't what it used to be.

In the article, Brian L. Porto points to three U.S. Supreme Court decisions limiting patronage and the firing of public employees.

In 1976's Elrod vs. Burns, the justices used strict scrutiny -- the highest of three forms of scrutiny, used in most First Amendment cases -- to examine the firing of public employees because of their partisan political affiliations. In Elrod, the justices ruled 5-2 in several opinions that such firings must further a compelling governmental interest in the least restrictive way. Justice John Paul Stevens did not take part in the ruling.

In the prevailing Elrod opinion, the high court said the "benefit gained [through such firings] must outweigh the loss of constitutionally protected rights."

In effect, the article said, this meant "that patronage dismissals would henceforth be limited to positions whose occupants could be characterized as 'policymakers.'"

In 1980's Branti vs. Finkel, the justices ruled 6-3 the "First and 14th Amendments protect [public employees] from discharge solely because of their political beliefs."

"The issue is not whether the label 'policymaker' or 'confidential' fits the particular public office in question, but rather whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the office," the majority said.

In 1990's Rutan vs. Republican Party of Illinois, "the high court faced the larger issue of whether promotions and transfers, as well as recall and hiring decisions involving low level public employees, may be constitutionally based upon the employee's affiliation with and support for a particular political party," the article said.

The justices ruled 5-4 that Elrod and Branti extend "to promotion, transfer, recall and hiring decisions based on party affiliation and support."

© 2012 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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