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.
” … and both laughing and crying at Indigo’s comment.” (Gene H)
I know what you mean … great wit is always appreciated
Reblogged this on Glory to man in the highest.
BTW I do have a Facebook page which I only got because I was trying to get Sam Seder a regular radio show on Air America. I rarely go on though because for the life of me I don’t know what the hell to do with it, or what utility it has for me.
I don’t understand how “liking” the page is any different for posting “I like your page”. Would the decision by the court have been different if the message had been typed, rather than clicking the “like” button?
Blouise,
Ya reckon? 😉
and both laughing and crying at Indigo’s comment.
What if it were possible to show that there was an economic value to “friending” 😉
Worked for Citizens United…
If I had a Facebook page I’d probably just “poke” people.
Political censorship issues are at the core of why I’m shutting down my FB page. Which is okay, I only had it in the first place to promote this blog, contacting friends was incidental. However, a friend was recently being attacked for his political views (which I happen to almost totally disagree with and have since high school) but comments made in his defense (both by myself and others) were taken down by the FB censors while his detractors were not. I am currently exploring both Google + and some open source alternatives to FB. I resisted getting a FB account for a very long time. The experience I’ve personally had there has only enforced the negative perceptions I had of the site going in to the venture.
And, yes, Judge Jackson dropped the analytical ball here. I hope Ray likes being overruled on appeal. (thumbs up symbol here)
This world sucks…..it is turning everyone into either a victim , a thug or a paranoid freak show. Rafflaw is right….Corporations can do and say anything with a check…the rest of us get beat up for saying hi to someone we know…..regardless of our personal thoughts on the acquaintance. Facebook is like watching cartoons on Saturday morning for most people…or saying hi to the grandkids or people you went to school with. Apparently it is also used by crooks to see whetyher you take trips or vacations. Those cops knew the other guy because they worked together….that Sherriff should have a psych exam….
Judge Jackson erred in his legal analysis.
“The case involves both free speech and the right of association in the context of Facebook.” (JT)
Simply put and simply true.
nick spinelli, we had an incident in this area the past couple of weeks where some law enforcement officers ‘friended’ a female they had in jail, and some of the messages were, shall we say, explicit. One was fired and the others placed on disciplinary leave. When I showed my daughter the news item, she rolled her eyes at the ceiling and said simply, “Idiots!”
Kairho, I don’t understand your point. It seems to me that the Like button does imply support. Friending says I want to know what you have to say, much like a Follow. But Like says, I agree with what you just said or I Like your site. Is there something about Liking a site that I don’t understand?
Bad decision by the judge. More erosion of our rights.
I recently read of a small company where employees were told they had to “friend” the boss so he “monitor what they did on Facebook”.
Just like here I do not use my real name on FB. Despite that they know way too much about me but this sort of stupidity is not their fault. If the courts side with morons we are all even more screwed then currently assumed.
Otteray Scribe, You raised a wise daughter.
There is a reason I don’t have a Facebook page, other than it being too much trouble to maintain. There is too much chance of the appearance of conflict of interest.
My daughter is a trained correctional officer, and she has had former inmates she treated well while they were locked up try to “friend” her. She has always declined, saying the conflict is obvious and does not want to get caught up in doing something improper.
I am not a fan of Facebook.
And I have never seen the observation that the Like button basically serves the same purpose as a Follow button on other sites. If one wishes, on Facebook, “to keep one’s enemies closer,” there is no way other than the Like button. In the Facebook case it certainly does not imply support.
Let me see if I understand this. Corporations can exercise freedom of speech just by writing a check, but a public employee who communicates on Facebook or presumably anyother social medium is limited in what they can say?!! This is an atrocious case and one that strikes at the heart of the the First Amendment.
It seems to me a very practical service could be provided by career counselors in universities. A seminar titled: “Scrubbing Your Facebook Page For Employers.”
While I mostly agree w/ the professor’s analysis on this I’m going to go to my personal responsibility take. Facebook is not private, believe me on that. I don’t care how many privacy settings they have. It’s an incredible investigative tool. My kids have been told that they should consider it like being in public and videotaped. I understand the First Amendment issues here. I just know the speech, photos, etc. on Facebook can be used in ways you’ll never know. They can be used as a lead in gathering info on you that one would never realize. The jeanie is out of the bottle, and she isn’t going back in the bottle.
During one of Giulliani’s reelection campaigns in NYC all of the Commissioners, Deputy Commissioners, Assistant Deputy Commissioners, etc., etc., we called to a meeting where they were told their maintaining their jobs would be based on their cash contributions and actual work as campaign volunteers. My guess is that this situation with the Sheriff is a similar one. The entire reason that there was a movement to establish Civil Service Systems throughout the country was to rein in the abuses of government employees beholden to a person and/or party.
As to the free speech portion of this issue it is really of the same caliber. Allowing government employees the ability to speak and associate freely is seen by officeholders and political parties as potentially dangerous to their power. This is also true in the private sector. Culturally, contrary to our Constitutional ideals, the trend is to stratify our society into a top down affair, where those under someones employ are required to profess a certain line of speech and thought, at peril of their employment.