The latest ruling on a social media debacle will only directly affect public employers — for now. Here’s why HR pros at private firms should be paying attention, too.
A new court ruling says that “liking” a Facebook post is protected speech under the First Amendment. That could mean headaches for HR pros in private companies down the road. How? Read on.
First, here are the details of the case:
A sheriff in Hampton, VA, was running for reelection. The problem? His direct reports refused to support him — and actually actively expressed support for his opponent.
You can guess how well that turned out when the sheriff was reelected. He opted to take out his frustrations with his staffers by refusing to reappoint them.
The former staffers turned right around and sued, claiming the sheriff violated their right to free speech under the First Amendment.
What’s the value of a ‘like?’
The former workers expressed their discontent in a number of ways during the reelection campaign, but the most relevant here is via “liking” the sheriff’s opponent’s Facebook page.
A district court ruled that “liking” someone’s Facebook page is “insufficient to merit constitutional protection.” But the appeals court thought otherwise, saying that it’s protected just as much as any written word.
Why? Several things happened as a result of “liking” the sheriff’s opponent’s Facebook page:
- The opposing candidate’s name and picture were added to each employee’s profile so that other Facebook users could see it
- Facebook issued a notification that each staffer had liked the candidate’s campaign page, and
- Each worker’s name and photo were added to the candidate’s “People Who Like This” list.
The Court noted that:
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.”
The court also added that “liking” someone’s page is “the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”
What’s the social media landscape ‘like’ now for firms?
Yes, this ruling will only directly affect public employers for the time being.
But many experts, including Sara H. Jodka of Porter, Wright, Morris & Arhtur LLP, say it’s not long until a similar case plays out in the private sector:
Private sector employers have seen a similar issue play out before the National Labor Relations Board where an employee’s Facebook post about terms or conditions of employment has been considered protected activity under the National Labor Relations Act based largely on whether the post generated co-workers’ positive comments in response and “Likes.” Therefore, private sector employers likely can expect that any discipline to the original poster and those who “liked” the post would be found to be an unfair labor practice under those circumstances. Similarly, clicking “Like” in response to a co-worker’s complaint on Facebook about race discrimination in the workplace likely would be considered protected activity in the Title VII context.
Employers, whether public or private, … should not be so quick to pull the trigger on a termination based solely on this kind of symbolic speech on social media.
Though it isn’t made explicitly clear in the case, the ruling suggests that private firms can’t fire someone for “liking” a page that a company doesn’t agree with.
The case is Bland v. Roberts.
