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.
That the Professor can put 23 “here” links in his posting about limiting free speech (referring to just his own blawg) is kind of amazing and scary.
I’m hoping that this decision is appealed and overturned but I’m surprised it had to get this far.
Are there no local rules or code of ethics regarding the proper use of funds by public servants which would bar using workers to provide a personal service? Weather its picking up your kids from school or working on a political campaign is theft of taxpayer funds. It’s inconceivable to me that this election related work wasn’t being done on duty time. I’d be upset if I were a taxpayer in this Sheriff’s territory.
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Ping v Poke: ping is the sound a sonar makes (at least in the movies) when it’s used to search for objects. “Ping” as a subject line (with or without anything in the body of the message) has been used for years as a ‘hey, you there?”, “Is this still a valid address?” etc. kind of thing. Oops, I’m showing my Interwebs age aren’t I? 🙂
I thought you guys were talking about “poke” salad, The one hit wonder by Tony Joe White. Wait a minute, that was “polk” salad. “Polk Salad Annie, the gator got your granny”
Of course that was all in a prior life as a human. I am a dog now and we dogs exercise our free speech in different ways. Some good dog ought to poop in some judge’s yard.
When I was a kid I had a button that said: I Like Ike. Now, some could say that my right to wear that button was free speech, but I was not saying Vote For Eisenhower. I was just saying I liked Ike. Then later I had a poster at college in my window that said President Johnson: Stop The War Now! I got reprimanded by a state school for doing that. I was a history major and I told the Dean that I was petitioning my government for redress of grievances and that it was protected speech under the First Amendment and that I was about to sue him in federal court under the First and the Fourteenth Amendment. Then we picketed the Deans Office and took it over and slobbed around for a day or so. The school never got over it. Then we ran Air Force ROTC off campus.
If that judge was in my town I would be in his courtroom tomorrow with an I Like Ike button. It would be all downhill for him from then on. Of course, hint, hint, if someone wanted to let the judge know about such things they could put a photo of a donkey butt on Facebook with the judge’s moniker on it.
forgot about the ‘poking’ thing. Had 1, 2 people in my women in pain awareness group ‘poke’ me then I would be asked if I wanted to “poke” back. Took only a few times of my not repoking before never asked again.
I remember back in the 90’s some thoughtless judge ruled that a hacker could not be prosecuted for illegally entering a system because the logging message was “Welcome to . . . ” I guessed that meant having a welcome mat outside your front door meant anyone could break in and get off free. The courts are sometimes clueless on new technology. I recall the USSC completely gumming up a decision a couple years ago because the old fools don’t know what texting was.
As for “poking” I have no idea of the value of it but I do know it irritates the heck out of Mrs. Frankly when I poke her on FB 8-{D
Blouise, SwM, You wouldn’t do this, would you?
http://gawker.com/5934936/cheating-scandal-rocks-the-world-of-competitive-scrabble
“Poking” is something my brother used to do to me when we were about 6-7. A finger in the ribs. I didn’t like it, so I didn’t do it to others, although I may have smacked the smart aleck a time or two.
The “like” button can imply many things including acknowledgement of the post and that someone you know posted it but that you disagree with it. Sometimes people will then comment about, dislike but liked that you posted it. Hitting the like button for something you disagree with is akin to acknowledging someone;s post about an illness, death, something sad, by showing clicking “like” to show you read it and this is your way of support.
My wife was a Federal Bureau of Prisons casemanager and Federal Probation Officer. All Federal employees are subject to the Hatch Act. We know many Federal employees and I never heard anyone complain about it. Maybe it’s because this is understood as part of the deal. I liked it because I always had a great excuse not to put political lawn signs out when asked by friends or neighbors. “Sorry..Hatch Act.” Of course I needed to explain it to most of them.
JT >”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.”<
Isn't this just what we expect of our public employees? Romney is facing opprobrium (rightly so if one considers that important) for not releasing his tax returns; we are constantly being told that our police, our politicians, our clergy, in short, those 'in authority' should be held to a 'higher standard' of behaviour because they require 'the public trust'. Although I totally disagree with the judges ruling in this case (hopefully it will be reversed on appeal), I can certainly understand WHY the judge ruled as he did. The American people have long been somewhat schizophrenic on this type of issue, a sort of 'as long as MY ox isn't being gored, free speech is acceptable, but gore MY ox and all bets are off'. We all know that there have been MANY cases where the Courts have limited our right of free speech, and arguably, at least some of those restrictions make sense. Personally, I never choose to hold officials to the higher standard that most people seem to think is appropriate because, in the final analysis, they are just men and women with all of the same foibles that we ALL have. If this ruling is upheld, the Professor is correct about it's effect on those in the public service. However, IMHO, we will also, as a society, bear the responsability of allowing it to happen.
I wonder if Judge Jackson thinks my pressing of the button for the candidate of my choice on the polling place computer is protected free speech?
“Voting has an expressive component in and of itself.”
~Justice Samuel Alito,
”If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.” — George Washington
(I found this on Facebook….it’s where I get news that the ‘Media Elite’ don’t publish as well…. 😉 )
Bettykath,
“What is “poking” all about. I’ve been poked a couple of times but didn’t know how to interpret it.”
Beats me. My kids, grandkids, and friends all tell me it’s a nice way of saying “thinking of you”. Somebody pokes you, you poke them back.
Slarti and SwM are playing scrabble through Facebook and lottakatz and I would love to join in on that but not if we have to go Facebook to do it. Of course poking Gene at all hours of the day or night would be fun ….
The more I hear about (and that is very little) FB and Google + the less inclined I am. Nicks warning words are enough to convince me.
I bare my heart and my bottom here with you, to your despair perhaps, but on those places,,,,,never.
GeneH,
Take a look at Branch.com, NYTimes tech page featured it a couple of days ago.
PS. Here the public employee enjoys 100 percent protection from employers. The private employee does not except when talking to journalists (and doctors etc).
The least move to investigate journalist contacts will get you time I believe. Journalists here dare to investigate.
Blouise 1, August 15, 2012 at 12:28 pm
If I had a Facebook page I’d probably just “poke” people.
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What is “poking” all about. I’ve been poked a couple of times but didn’t know how to interpret it.
My fb page is how i keep up with family and hs classmates. One hs classmate turned out to be a bigot and was de-friended. Normally I would try to ask questions to maybe get her to be more tolerant, but the comments were directed toward a specific group. Members of that group are also members of my family. Don’t want family members reading that c… on my page.
SwM,
I’d love to take him on … found a game on line but he’ll have to look at it and tell us if it’s safe to use.
We are enjoying some beautiful weather up here so he’s probably out on his lake.
If I don’t get a chance later … Bon Voyage
Evidence of another example of courts not understanding the nature of communication technology either misinterpreting the events or failing to accept that change is being made to society.
This is akin to ruling pushing a touch screen button to buy a banner ad supporting a political candidate does not constitute free speech.
I have a facebook page but don’t do anything with it, and you can tell by looking at it but do enjoy posts of friends and playing games. Slarti beat me in Scrabble, blouise.
The ruling is reversible. Friending is speech, and it is protected. Disputed facts on material issues preclude summary judgment, even under the somewhat looser standards of the federal rules. The decision ought to be summarily reversed on appeal.