By WENDY ADKINS

On Sept. 18, Bland v. Roberts, No. 12-1671, 2013 WL 5228033 (4th Cir. Sept. 18, 2013), the United States Court of Appeals for the Fourth Circuit overturned a district court and held that the act of hitting the “like” button on Facebook is speech afforded constitutional protections by the First Amendment.

While the decision involved a public employee, the decision could have broader implications for the private sector, too.

In Bland, employees of a Virginia sheriff who was running for re-election were terminated for “liking” the sheriff’s opponent’s webpage on Facebook. Some of the employees had participated in traditional campaigning activities against the incumbent, such as handing out flyers, placing yard signs, and attending campaign events.

In addition to the traditional campaigning activities, however, one employee also “liked” the opposing campaign’s website on his Facebook profile.

The lower court held that pressing the “like” button” did not involve “enough speech” and that “liking” something is not a sufficiently “substantive statement” to require First Amendment protection. The Fourth Circuit disagreed:

"On the most basic level, clicking on the 'like' button literally causes to be published the statement that the User 'likes' something, which is itself a substantive statement... That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance...

"In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associated the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

The Fourth Circuit is the federal appellate court that covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

Although Bland involved protections afforded by the First Amendment, the decision may influence future decisions under the National Labor Relations Act or even Title VII of the Civil Rights Act.

In Triple Play Sports Bar, Case No. 34-CA-12915 (January 3, 2012), a Board administrative law judge (ALJ) found that a discharged employees had participated in a protected discussion by simply clicking the “Like” button on another employee’s Facebook wall post about the employer’s tax withholding error.

The NLRB, however, has not yet issued a formal decision addressing the issues of whether “liking” something on Facebook is protected or whether two employees “liking” each other posts gives rise to a concerted activity. Similar questions could arise under state and federal discrimination laws, if an employee “likes” a co-worker’s complaint about discrimination in the work place.

Thus, today’s employer must be cautious when taking action as a result, of not only actual posts, by also symbolic speech through the use of icon buttons by their employees. Accordingly, the Bland decision is a good reminder to update or introduce social media policy in your workplace today.

Wendy Adkins is an attorney in the Morgantown office of Jackson Kelly. This editorial was published on the firm's Chemical Industry Update blog.




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