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‘Right to Like’ gets protection under appeals court ruling

facebook-logoClicking a “Like” button on the Facebook page of his boss’s political rival was protected speech that should not be the basis of a deputy’s firing, a federal appeals court has ruled.

A panel of the 4th U.S. Circuit Court of Appeals reversed the decision of Norfolk U.S. District Judge Raymond Jackson who held that “liking” a Facebook page was “insufficient speech to merit constitutional protection.”

The issue arose in a lawsuit against the Hampton sheriff alleging he fired six employees in retaliation for their support of his opponent.

The appeals court panel said that, once the implications of a Facebook “Like” are considered, it is clear that it qualifies as speech.

“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,” wrote Chief Judge William B. Traxler Jr. for the three-judge panel.

Communicating approval of a candidate with a Facebook “Like” is the Internet equivalent of displaying a political sign in one’s front yard, Traxler said.

The appeals court sent claims for reinstatement by three former deputies back to the district court for further proceedings.

The ruling in Bland v. Roberts was hailed by the ACLU of Virginia, which had filed a friend of the court brief.

“We commend the Fourth Circuit for recognizing that interactions in social media deserve the same protection as talking from a soapbox on the street corner,” said ACLU legal director Rebecca Glenberg in a news release.

The Bland decision also helps draw lines for liability for political firings.

Whether an elected sheriff may fire deputies who did not support him for re-election may depend on the specific duties of the deputy in question. Four of the plaintiffs were sworn, uniformed sheriff’s deputies who worked as jailers in the corrections division of the sheriff’s office. Two other plaintiffs were not deputies, but worked in non-sworn administrative positions, one as a training coordinator and one as a finance and accounts payable officer.

Courts should consider whether demanding political loyalty was an appropriate requirement for a deputy’s effective job performance, in light of the duties of their particular positions, Traxler said. Jailers were more likely to fall on one side of the line, allowing suit, than deputies who functioned as close advisers responsible for carrying out the elected sheriff’s policies.

A sworn deputy is a sheriff’s alter ego, while a jailer concentrates on matters of custodial care and supervision, the panel said. The sworn deputies in  Bland took an oath simply to support state and federal constitutions and faithfully discharge their duties. The trial court erred in granting summary judgment to the sheriff on the basis that he could terminate politically disloyal deputies, the panel held.

Given the “mixed signals” sent by earlier case law, a “reasonable sheriff” could have believed in December 2009 that he had the right to choose not to reappoint his sworn deputies for political reasons, including speech supporting the sheriff’s opponent. That meant this defendant sheriff had qualified immunity from any money judgment against him personally.

A guest judge on the panel dissented from the qualified immunity holding. Judge Ellen Lipton Hollander, a federal trial judge from Maryland, said the Hampton sheriff should have known at the time that he could not fire his jailers on the basis of their political affiliation.

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