The ABA Journal has an interesting case regarding Facebook and its “likes.” If you use Facebook, it is very likely that you have “liked” a page, a comment, a photo, etc. The 4th Circuit Court of Appeals recently held that a “like” is protected under the First Amendment.
In Bland v. Roberts, No. 12-1671 (4th Cir. Sept. 23 2013), six plaintiffs allege that because their support for the Sheriff’s opponent, the Sheriff retaliated by choosing not the reappoint them. One of the plaintiffs had “liked” the opponent’s Facebook page.
The First Amendment application for a public employee is interesting. In order for a public employee to enjoy First Amendment protection and show that the employer violated the First Amendment, the employee has to show 3 items.
- (1) the employee was speaking as a citizen upon a matter of public concern rather than an employee about a matter of personal interest;
- (2) the employee’s interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public; and
- (3) the employee’s speech was a substantial factor in the employer’s termination decision
Furthermore, the degree of the protection depends on whether the political affiliation or political allegiance is an appropriate requirement for the effective performance of the public office. Here, the three deputies were trained as jailers and had never made an arrest. In other words, their political support for the Sheriff’s opponent may not a requirement for their performance of their duties. This speech includes a “like” on Facebook. The 4th Circuit remanded the case for further proceedings.
via Clicking ‘like’ is protected by First Amendment, 4th Circuit says.
The Second Circuit Court of Appeals brings an interesting labor decision. In State Employee Bargaining Coalitation v. Roland, ___F.3d___( 2d Cir. May 31, 2013), the court found that targeting Union employees for layoffs violates the First Amendment (freedom of association).
In this case, the employer employed around 50,000 people. 75% of these employees were members of the Union, and 25% were not. In December 2002, the employer fired only Union employees. No non-Union employees were fired.
It is important to note that an employer can manage the size of their work force. However, the employer cannot target a protected group (here, employees who associated themselves with the Union). The reason for this is because by targeting a protected group, the effect is to inhibit employees from their freedom to associate.
Under the Constitution, in order for the employer to not violate the Constitution it must show that they used the less restrictive means to accomplish their interest and must be narrowly tailored to achieve their goals.
The following are the pivotal facts of this case. The employer’s interest was to manage their economical situation. However, the laying off those Union employees had a minimal effect on their budget. In fact, these Union-only lay offs were not included in the Balanced Budget Plan. Further, the facts showed that because both Union and non-Union employees had the same health care and pension benefits there was no reason why only the Union employees were targeted.
via Adjunct Law Prof Blog: Targeting Union Employees For Layoffs Violates The First Amendment.