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.