An Opinion You Have To Like: Federal Court Rules Employee’s “Likes” Are Protected Speech

sheriff-and-triple-crown-deskHampton, Va., Sheriff B.J. Roberts appears not to have much time for actually fighting crime. Instead, after his reeleection, Roberts sought out employees who favored his opponent. It was not too difficult, he found jailer Daniel Carter who hit “like” on his opponents website. Roberts fired him and others allegedly viewed as disloyal. However, the United States Court of Appeals for the Fourth Circuit ruled this week that such a designation is protected speech under the First Amendment. The opinion in Bland v. Roberts is below.

Carter was one of a number of employees fired due to their perceived support of the opposing candidate, a deputy named Adams. In the opinion, Roberts comes off as a Huey Long in uniform. One of the issues of contention was a cookout where Adams was one of the guests. A “Colonel Bowden” appears to have ratted on officers who “liked” Adams and then the cookout became a matter of informal investigation by Roberts’ people:

In early September, Sheriff Roberts addressed his employees’ support for Adams in speeches he gave during the various shift changes. He expressed his disapproval with the decision of some to support Adams’s candidacy on Facebook. He stated that he would be sheriff for as long as he wanted and thus that his train was the “long train.” J.A. 572 (internal quotation marks omitted). He indicated that Adams’s train was the “short train” and that those who openly supported Adams would lose their jobs. J.A. 572 (internal quotation marks omitted). Additionally, after the conclusion of the meeting that occurred before Carter’s shift change, the Sheriff angrily approached Carter and “ma[de] several intimidating statements.” J.A. 572. He then added, “You made your bed, and now you’re going to lie in it – after the election, you’re gone.” J.A. 572 (internal quotation marks omitted).

raymond_alvin_jacksonNot only did Roberts state such a clearly abusive policy, but county lawyers spent money defending the abuse all the way up to the Fourth Circuit. It is equally disappointing to see this conduct upheld by District Court Judge Raymond A. Jackson (right), who believes that sheriffs can fire employees for liking opposing candidates and inviting one to a weekend social engagement. Jackson did not even allow Carter to have a trial on the question. He clearly deserves this reversal for a decision that not only ignored the precepts of free speech but denied the right to a trial in the face of raw political retaliation by Roberts. Jackson closed the court to these officers and, in so doing, reinforced the alleged cronyism rampant in the Hampton Sheriff’s department. Jackson bizarrely dismisses an expressed statement of support for a candidate as without substance or meaning for the purposes of protection of the first amendment. In his lower court opinion, Jackson, a former prosecutor, quickly dismisses the claim by saying

“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.”

As shown by his reversal, Jackson might have tried a bit harder to infer meaning from the “click.” It is ridiculous to treat the fact that information can be conveyed by a click to mean that it is without serious content. Jackson suggested that if he wrote out “I really like Adams” on the website, he might have tried a bit harder to look for protected speech.

As for Roberts, he continues to draw pay and run his “long train” that appears to run on cronyism and caprice.

Here is the opinion: 121671.P

Bland Opinion

15 thoughts on “An Opinion You Have To Like: Federal Court Rules Employee’s “Likes” Are Protected Speech”

  1. So the principle is, if the ideas of the employee subvert his ability to perform his assigned duties, then he may be fired for his ideas.
    Where a DA has “prosecutorial discretion” (viz, Holder not charging Bush for torture), they why was it wrong some years ago when Carl Rove had so many DA’s fired for being Democrats?
    Is it while we are able to tolerate political non-prosecutions, political prosecutions are a step too far?

  2. I don’t see the direct application of the First Amendment. My understanding of the “free expression” clause of the first amendment is that it prevents the government from arresting you and charging you with a crime because of the content of your speech, barring a few exceptions.
    The deputy was not charged with a crime nor arrested.

    I of course agree that the deputy should not be fired because of his support for another candidate, but I don’t see how the First Amendment comes into play specifically.

    That clicking a button conveys a message is obvious I think. That is the point of all buttons, except for buttons on clothes, and even there, there is room for messaging. I am surprised that a county attorney may properly claim such nonsense, but I suppose being on the defense allows his imagination great latitude.

    I suppose I should read the opinion. (Might be helpful.)

  3. this is certainly the poster child for Civil Service Commissions. I they are mandated in several states to insulate employees who are covered from arbitrary terminations and to ensure that, as much as possible, cronyism and other bad influence in hiring.

    Some higher up persons, and/or those appointed by the sheriff are generally not protected by the commission but if a particular person was say a line deputy and was appointed by a new sheriff to Chief Deputy, if a new sheriff wanted someone for that position the person would lose the Chief Deputy position but was entitled to her original position as line deputy.

    While this helps immensely there still can be the animosity between factions that align themselves before the election and afterward the prevailing party doesn’t just give it up by underlying impulses begin the percolate out and strife can happen between the two factions, such as favors or bad shift assignments. It usually takes about a year for this to die down.

    The Best thing I found was to just be supportive of either candidate like you would in supporting them in their regular work day. And nobody knows who you vote for at the ballot box. Sure there is the risk that not kissing arse on the probable winning candidate might make it more difficult to get an appointed position. But it saves you from being on the blacklist if the other candidate wins.

    But the trouble with a lot of these sheriff’s departments is they are often small agencies or medium sized agencies with not a lot of opportunity for career advancement. Sometimes it could take years for a slot to open and lack of supply makes some deputies act badlly and underhandedly to get those coveted positions. When it comes to the top cop position it is even worse. Hence, most of the politics there stems from it. then when one wins say the sergeant promotion slot, the winner goes on an ego trip, the losers are jealous and sometimes the winner then exacts small forms of payback or even revenge against those who campaigned against them.

    Grudges in police culture tend to last a very long time. Then you couple all of the above with officers becoming a little bored or uninspired in the multiyear old routine and then the politics comes out even more.

    I felt the best way to combat the day to day politics was to go to work only to do the task at hand. (your job description) and to have as much fun and joke around with the other deputies and go home safe. Sticking to that politics rarely came into play. Doing the opposite, brooding around griping about how the day sucked, leads to gossiping about how deputy A is a slacker because Sergeant B ignores him because A is the Cousin to Chief Deputy C and it makes for a very poisonous and dysfunctional department.

  4. Mespo, it goes all the way back to Merrie Olde England, where sheriffs wielded enormous political and economic power, not to mention the ability to lock up enemies and anyone else who stepped out of line.

    Traditionally, the sheriff is the most powerful political figure in the county (or shire). Some sheriffs are really good, like the late Cody Carpenter of Scott County AR and Osborne Bell of Marshall County MS. Then there are those who let the power go to their heads. The instant case is a good example.

  5. The problem is Virginia’s archaic notion that employees of constitutionally elected officers, like the sheriff (as opposed to the police chief who is appointed), serve at the unfettered pleasure of that officer Firings and demotions are usually without any legal recourse. This has needed fixing for the 30 years I have been practicing law as many good deputies have felt the wrath of an out-of-control sheriff.

  6. OS is correct. The NASTIEST local elections are often for sheriff. Politics in law enforcement is what drives the best cops out of the biz.

  7. That offices held by elected officials are highly politicized is not new, and we all know that phenomenon reaches all the way from small municipalities to the highest levels of government.

    As far as sheriff’s office are concerned, unless a sheriff has a hand picked successor upon retirement, it is not unusual to see a general house cleaning, and not just staff is affected.

    I know personally of a few sheriffs who literally cleaned out their offices and shredded personnel files upon being defeated for reelection. One newly elected sheriff told me that when he walked into his new office for the first time, the only thing left was the carpet. Since purchase files had been destroyed, there was no proof as to county ownership of the furniture and equipment. All personnel files had to be reconstructed.

  8. Since the office of sheriff is political as can be…. That’s why we have the civil service created… And in other cases unions… To protect against abusive and retaliatory firing practices…

    The exceptions I can see are when the jobs are political in nature….

  9. I wonder what would happen if a Goldman employee did a thumbs down on Ben Bernanke? That click would cost that person their job. Cronyism is the new capitalism. Thrive by lying, cheating and stealing or starve by truth telling, honesty and giving.

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