The legal implications that social media has on employees and employers is a still-evolving concept; however, courts are increasingly hearing more cases where employers may land themselves in hot water for making employment decisions based on an employee’s internet postings. In Bland v. Roberts, Civil Action No.: 4:11cv45 (E.D.V.A. Apr. 24, 2012), seven former employees of the Hampton Sheriffs’ Office sued the Sheriff of the City of Hampton, claiming, among other things, that the Sheriff wrongfully terminated their employment after learning that the employees were actively supporting his competitor during the Sheriff’s re-election year.
Of note was one employee’s claim that the Sheriff failed to reappoint him to his position in retaliation for the employee’s exercise of his right to freedom of speech. The particular employee ‘liked” the Sheriff’s opponent’s Facebook page, and argued that this was a constitutionally protected activity under the First Amendment. The employee claimed that once the Sheriff learned that he made a “statement” supporting the Sheriff’s opponent, the Sheriff retaliated against him by failing to reappoint the employee to his former position. However, the Court held that the mere “liking” of a Facebook page is not an expression of “speech,” and thus, does not merit constitutional protection. Accordingly, the employee could not prove that the Sheriff’s employment decision violated the employee’s First Amendment right to freedom of speech, and his retaliation claim was dismissed on summary judgment.
The Court did state, however, that there are instances where Facebook activity could qualify as constitutionally protected speech. To determine whether a public employee has stated a claim under the First Amendment for retaliatory discharge, the Court must determine three factors: (1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a personal matter or personal interest; (2) whether the employee’s interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public; and (3) whether the employee’s speech was a substantial factor in the employee’s termination decision.
Writing a specific Facebook post, such a status message or commenting on another message can be constitutionally protected speech. For example, a federal court in Atlanta recently held that a Facebook post stating: “Who would like to hear the story of how I arrested a forgery perp [sic] at Best Buy online to find out later at the precinct that he was the nephew of an Atlanta Police Investigator” constituted an expression of speech about public concern that was covered under the First Amendment.
While simply “liking” a page may not be the kind of substantive statement that warrants constitutional protection, Facebook posts have been considered matters of public concern. Thus, in the new world of social media, public employees may have First Amendment retaliation claims if they believe an employment decision violated their right of freedom of speech in the online world.