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.