Court Rules Facebook “Friending” Not Protected Speech Under First Amendment

There is a troubling free speech case in Virginia where a sheriff’s deputy, Daniel Ray Carter Jr., and five other employees were fired for “liking” his boss’ opponent on Facebook. We have been following the growing trend of public employees from teachers to police officers and others being fired for communications or associations in their private lives. In this case, U.S. District Judge Raymond A. Jackson rejected the claim that friending someone is an act of free speech — a view that would by extension move a wide range of speech outside the protection of the first amendment. The decision is found in Bland v. Johnson, 2012 U.S. Dist. LEXIS 57530 (E.D. Va. 2012).

The Court detailed some of the underlying claims in its published opinion:

The Plaintiffs claim that during his tenure the Sheriff used his authority to bolster his reelection efforts, including using employees to manage his political activities, using prisoners to set up campaign events and forcing his employees to sell and buy tickets to campaign fundraisers. Compl. ¶ 15. Plaintiffs contend that in late 2009, the Sheriff learned that a number of his employees were actively supporting Jim Adams, one of the Sheriff’s opponents in the election. Compl. ¶ 17. Jim Adams was a former Lieutenant Colonel in the Sheriff’s department and he knew each of the six Plaintiffs in this action. Compl. ¶ 17.

The Plaintiffs further allege that the Sheriff learned that each of them affirmatively expressed their support for Adams by informing other individuals of their support, attending a cookout which Adams also attended and “liking” Adams’ Facebook page. Compl. ¶¶ 18(a)-(d). According to the Plaintiffs, after learning of their support of his opponent, the Sheriff called a meeting in which he informed his employees that they should get on the “long train” with him rather than riding the “short train” with his opponent. Compl. ¶ 22.

The Sheriff won the November 2009 election, and he decided not to retain the six Plaintiffs as well as six other employees. Compl. ¶ 26; see also Decl. Sheriff B.J. Roberts ¶ 10 (“Decl. Roberts”). The Sheriff claims he did not reappoint three civilian employees (including Plaintiffs Bland and Woodward) based on a reduction in the number of sworn deputies which the Compensation Board allocated to him. Decl. Roberts ¶ 11. He contends that he wanted to replace the civilian employees with sworn deputies. Def’s. Mem. Supp. Mot. Summ. J. ¶ 16. The Sheriff also declined to retain the remaining four deputy Plaintiffs and five other deputies for unsatisfactory work performance or for his belief that their actions “hindered the harmony and efficiency of the Office.” Id.

It is the Facebook element that should hold the most interest — and produces the greatest concerns — for civil libertarians. The Court held:

[T]he Sheriff’s knowledge of the posts only becomes relevant if the Court finds the activity of liking a Facebook page to be constitutionally protected. It is the Court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record . . . These illustrative cases differ markedly from the case at hand in one crucial way: Both Gresham and Mattingly involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’ Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection.

I believe the court is fundamentally wrong about the scope of protected speech under the First Amendment. The fact that such speech can occur with a simply “click” is of no importance. In today’s computerized world, much speech occurs through such single clicks or designations. The deputies were not “friending” some stranger on Facebook but a candidate to head their office. That speech was allegedly the basis for retaliation. Since the court must assume factual disputes in favor of the non-moving party, it would seem that, if they were fired for friending an opponent, the act did have meaning and substantive content. The case involves both free speech and the right of association in the context of Facebook.

Friending a candidate for this office should in my view be “fairly considered as relating to any matter of political, social, or other concern to the community.” Connick v. Myers, 461 U.S. 138, 146 (1983). Such speech is protected even when speaking in private to a friend. See, e.g., Waters v. Chaffin, 684 F.2d 833 (11th Cir. 1982). Friending the opposing candidate is an expressive act. It is not the click but the association with the candidate that has substantive content.

What is striking is the ruling in the context of a motion of summary judgment. The plaintiffs allege that the friending was the reason for their termination, a fact in dispute. If it was the reason, doesn’t that indicate that friending conveys an obvious message for the defendant (and others)?

Putting aside the free speech interpretation, this is part of a disturbing trend of public employers regulating the private lives of public employees. We have previously seen teachers (here, here, England, here, here, here, here, here, here, here, here, here, here), here, here, students (here and here) and other public employees (here and here and here) fired for their private speech or conduct, including school employees fired for posing in magazines (here), appearing on television shows in bikinis (here), or having a prior career in the adult entertainment industry (here).

These cases reinforce the view that public employees must live in a fishbowl — subject to the scrutiny and approval of both their bosses and the public. It is a trend that endangers core rights for people who are in the public service.

We will be watching this case closely as it moves to the Fourth Circuit.

55 thoughts on “Court Rules Facebook “Friending” Not Protected Speech Under First Amendment”

  1. Seemed to me when written that the person known well was obviously myself.
    “Poking is probably used equally to say: “I am here. Acknowledge me, see me, hear me. I am two years old and need attention.” Seems to fit someone I know well. Smile.”

    Would it not have been easier to say “Don’t poke me”. Or was that too easy. You are still equally high as before in my estimation. No damage there. Just so you know.

    Just got a thing on poking confirmed as to my use of it. Thanks

    No response necessary. Oh yes, and don’t think of elephants..

  2. Clarification on my Like vs Follow contention. To Like is as most everyone has said, it shows support for something. To Follow has no such connotation, it only says someone is being observed.

    Consider two, say, presidential candidates on Facebook, say, Smith and Jones. If I am a political junkie it would be fine for me to support Smith with a Like. But I would also need to see what Jones is up to; I need to Follow Jones. In Facebook, there is no option to Follow so Like it is. In this example it does not connote support.

  3. Itchinbay in my medical malpractice case I presented 2 facts, the doctor said 2 times facial paralysis was a major and common complication and then on the stand “unknow”. I was Pro Se (too long a story to explain). The facts were there for the jury to decide. I testified he promised no injury to my face, and he testified to both, is, and is not. I rested unprepared for the change in testimony. Instead of submitting, because the issue was there for the trier of fact (the jury) he non suited me. As has been said in other posts, judges can pretty much do anything they want. (It was reversed in appeal and retunred to lower court (after of course the first appeal that went to the same judge – talk about the ridiculousness of the judicial process: what should be a conflict if interest rather then pro forma in the process.)

  4. Lotta,

    You’re OK, I’m OK. OK?

    Now: I don’t carry things from one thread to another.
    Every thread is separate in my little mind.

    I don’t concentrate on you, if that should be a worry.
    You do provide some very tempting hooks to hang my rants on. I will be careful in the future to delete your name as addressee, etc.

    The rant will have to perhaps include an excerpt to intro it.

    Or if you prefer I can delete you from my “set”, as in mathematical set.

    That I “poke” I have written in my post. Did you not see it? Your mentioning of it could be called in question as to intent. But I refrain.

    Don’t regard this as directed at you. It is the Martin Luther in me nailing up my theses here at JT’s.

    No fight sought nor desired.

    No response necessary.

  5. Clearly this court has ignored the importance of a “like” click in this context. As in many of these cases, the First Amendment issue is determined on a fact basis. Yes, “liking” may imply more than one thing in the context of a friend’s photo or statement, but in the context of a political page, the intent is obviously more clear. It is the digital equivalent of wearing an “I Like Ike” button.

  6. ID707: “It is the duty of our congressional reps to be the detectors and reporters of change, and instigators of legal accommodation of change.”

    And they do a bad to non-existent job of it with tech change. Also, they are in the pocket of MPAA and RIAA and the full force and weight of the government, the FBI, DHS, ICE are all too willing to act as their enforcers with a ‘shoot first and ask questions later’ attitude.

    Sounds like you’re doing a bit of poking on your own, don’t us a post directed to me to do that- if I want to become involved I will, invited or not, but generally I just not interested. If I get in a tiff with someone i deal with it to the end or abandon it as a waste of time and don’t look back- life’s too short. But I’m a totally ineffective and poster, not worth arguing with in general so i seldom get into disputes and like it that way, Just say’n, no response necessary.

  7. Lotta,

    Thanks for the ping vs poke. I too “could” have belonged to the ping generation—if I had been geek qualified to use the geek network, what its name.

    Poking is probably used equally to say: “I am here. Acknowledge me, see me, hear me. I am two years old and need attention.” Seems to fit someone I know well. Smile.

    How can courts keep up? They like the law practice in general venerate the past and are always guided by looking backwards in time—except state courts as reported above.

    Forward looking? Farsighted? Not likely. It is the duty of our congressional reps to be the detectors and reporters of change, and instigators of legal accomodation of change.

  8. There are questions of fact in this case which was resolved against the plaintiff on a motion for summary judgment. It is not for the judge to determine the facts. He must only rule for the moving party on summary judgment if there are no material facts in dispute. A judge on the court of appeals might liken this facebook thing to an “I like Ike” campaign button in 1956.

  9. Then again the Kentucky Bar Association got shot down by the 6th Circuit…… I wonder what Frank has to say?

    Issues: Article III “standing”; Steffel v. Thompson; “Injury in fact”; Babbitt v. United Farm Workers Nat’l Union; “Subjective chill”; “Credible threat of enforcement”; Morrison v. Board of Educ. of Boyd Cnty.; Whether free speech claims are cognizable when speech has been chilled by the threat of future enforcement; Brown v. Entertainment Merchs. Ass’n; “Ripeness”; Grace Cmty. Church v. Lenox Twp.; “Likelihood of harm”; Norton v. Ashcroft; Applicability of the Rooker-Feldman doctrine; Exxon Mobil Corp. v. Saudi Basic Indus. Corp.; In re Cook; Determinations by bar associations as state court decisions for the purposes of the Rooker-Feldman doctrine even if no hearing is held and there is no opportunity to appeal; Raymond v. Moyer; The “source of the injury” alleged in the complaint; Evans v. Cordray (Unpub. 6th Cir.); McCormick v. Braverman; Prospective relief; Hood v. Keller; Fieger v. Ferry; Lawrence v. Welch; As-applied challenge; Connection Distrib. Co. v. Holder; Speech involving governmental affairs; Mills v. State of AL; Defamation standard; New York Times Co. v. Sullivan; Matter of Palmisano (7th Cir.); Differences between the interests served by defamation law and those served by rules of professional ethics; Standing Comm. v. Yagman (9th Cir.); Ethical rules and free speech; United States Dist. Court v. Sandlin (9th Cir.)
    Court: U.S. Court of Appeals Sixth Circuit
    Case Name: Berry v. Schmitt
    e-Journal Number: 52297
    Judge(s): Rogers and Daughtrey; Concurrence – Zouhary
    The court held that the district court erred in granting summary judgment for defendant because plaintiff had standing to bring his claim for violation of his free speech, his claim was ripe, was not barred by the Rooker-Feldman doctrine, and had merit. Plaintiff, an attorney, received a warning letter from defendant, the chairperson of a state bar inquiry commission, indicating that defendant had violated an ethical rule after he disseminated a letter criticizing the Legislative Ethics Commission’s handling of a matter. Plaintiff sued defendant, alleging that he wished to engage in further criticism of the legislative commission’s investigation, but had refrained for fear of professional discipline. The district court granted summary judgment for defendant, holding that the Rooker-Feldman doctrine barred plaintiff’s as-applied challenge. On appeal, the court disagreed with defendant’s argument that plaintiff lacked standing, noting that he alleged an injury-in-fact and showed a credible threat of enforcement. The court also rejected defendant’s argument that plaintiff’s claim was not ripe, finding that he demonstrated “an imminent threat of prosecution,” an intention to engage in speech prohibited by the warning letter, and “a reasonable fear that he would be punished for doing so.” The court further held that the Rooker-Feldman doctrine did not bar plaintiff’s claim. The court found that plaintiff did not request relief from the warning letter itself, nor did he challenge the process by which the warning letter was issued. Instead, the court noted, he sought relief that would allow him to engage in future protected speech, which falls outside the purview of Rooker-Feldman. Finally, the court addressed the merits of the as-applied challenge. Noting that Sullivan is “arguably too restrictive to apply in all its strength to court-enforced ethical obligations,” the court concluded that the Ninth Circuit Court of Appeals “compellingly articulated a more appropriate test” in Sandlin. The relevant “‘inquiry focuses on whether the attorney had a reasonable factual basis for making the statements, considering their nature and the context in which they were made.'” The court concluded that since plaintiff’s statements could not be restricted even under this test, it was unnecessary to resolve definitively whether the stricter Sullivan test applied. Plaintiff “disclosed all of the facts underlying his opinion, all of which were true and non-defamatory.” His opinion was based on stated facts. “Given this context, readers were free to form another, perhaps contradictory, opinion from the same facts.” The court held that the Kentucky rule of professional conduct at issue was unconstitutional as applied to plaintiff’s speech. Reversed and remanded.

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