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

Hampton, 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:

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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).

Not 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