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‘Like’ on Facebook is not protected

A Facebook “like” for a boss’s political opponent is not protected speech under the First Amendment, a federal judge in Newport News said last month.

One “click of a button” on a Facebook page does not warrant constitutional protection under existing case law, the judge said, in a lawsuit over public employees’ free speech and association rights.

A group of civilian employees and uniformed deputies in the Hampton Sheriff’s Office sued Sheriff B.J. Roberts when he fired them after he was reelected in 2009. The plaintiffs had expressed their support for Roberts’ opponent Jim Adams: “liking” Adams’ Facebook page, telling others of their support and attending a cookout with Adams.

Their suit alleged that when Roberts learned about plaintiffs’ allegiance, he called a meeting and told his employees they should get on the “long train” with him, and not ride the “short train” with his opponent. After he won reelection, Roberts made a number of personnel changes, saying, among other things, that he wanted to replace civilian employees with sworn deputies.

Six ex-employees sued, alleging a retaliatory discharge that violated their First Amendment rights.

Three plaintiffs – Daniel Carter, Robert McCoy and Debra Woodward – did not have a claim, the district court said, because they did not show “expressive speech.” Carter and McCoy said they “made statements” on Adams’ Facebook page, but the court said there was no evidence of what they actually said in any posts.

“Merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” said Newport News U.S. District Judge Raymond A. Jackson. “In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record. … Facebook posts can be considered matters of public concern,” but not in this case,” Jackson said in Bland v. Roberts (VLW 012-3-171).

Another employee, David Dixon, said he had a bumper sticker supporting Adams and also told a coworker she should throw Roberts’ campaign literature in the trash can. There was no evidence Roberts knew about the bumper sticker and the court said the “trash can” comment was not speech about a matter of public concern to the community at large.

Roberts’ knowledge that employees had been on his opponent’s Facebook page also did not support plaintiffs’ association claim. Even if the sheriff had some idea about plaintiffs’ political opposition, the sheriff was entitled to both qualified and 11th Amendment immunity, Jackson said. He granted summary judgment to the sheriff.

The rights at issue were not clearly established at the time of the alleged violation, a crucial test for qualified immunity.

Lawsuits filed by discharged public employees who bet on the wrong horse in a local election are not uncommon in Virginia federal courts. Courts “have inconsistently used the First Amendment to allow for dismissals of some employees but not others,” Jackson said.

Public employees’ First Amendment rights is a tough area to litigate and to judge. Courts can’t expect the sheriff on the front line to perceive a bright line when they are struggling to define boundaries.

Roberts’ admission during his deposition that he knew his employees had a right to oppose him politically did not shore up the plaintiffs’ case, according to Jackson, as it did not necessarily show an elected official would fully understand “the complexity of the legal questions” in the case. Sometimes an elected official can demand loyalty of his employees, Jackson said, when the employee has a “confidential, policymaking or public contact role.”

Beyond qualified immunity, the sheriff also had 11th Amendment immunity, Jackson said, as the state would have to pay any judgment against the sheriff in his official capacity. There was no evidence the stated had abrogated or waived its constitutional immunity, Jackson said.

As constitutional officers, sheriffs have historically had “broad latitude” to hire and fire, said Virginia Beach attorney Jeff Rosen, who represented Roberts. Even so, a sheriff’s rights have not been entirely clear, as Jackson’s ruling illustrates, he said.

Newport News lawyer James H. Shoemaker Jr., who represented the plaintiffs, could not be reached for comment.

VLW 012-3-171

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