Liking a candidate’s Facebook page is protected speech under the First Amendment.

Six former employees of the Hampton, Va., Sheriff’s Office filed a suit claiming that they were not reappointed at their position because they supported the sheriff’s electoral opponent, Jim Adams, by « liking » his page on Facebook. The Plaintiffs alleged that they were retaliated against for exercising their First Amendment rights to free speech and association. The Fourth Circuit Court of Appeals sided with the plaintiffs and held that « liking » on Facebook is Consitutionally-protected Free Speech. The court of appeals reversed a ruling by a federal district judge who threw out the lawsuit last year on the grounds that a Facebook “like” was “insufficient speech to merit constitutional protection.”

The suit alleged that Sheriff Roberts retaliated against the plaintiffs in violation of their First Amendment rights by choosing not to reappoint them because they supported his electoral opponent. All plaintiffs alleged that Sheriff Roberts violated their First Amendment right to free association after they were not reappointed. Besides, four plaintiffs also alleged that the Sheriff’s actions violated their First Amendment right to free speech based on their instances of speech made in support of the other candidate during the 2009 election.

The First Amendment, in relevant part, provides that “Congress shall make no law . . . abridging the freedom of speech.” which is applicable to the states through the Fourteenth Amendment. The First Amendment also protects “the right to be free from retaliation by a public official for the exercise of that right.” However, the Government may impose certain restraints on public employees that would be unconstitutional if applied to the general public.

In order for a public employee to prove that an adverse employment action violated his First Amendment rights to freedom of speech, he must establish (1) that he “was speaking as a citizen upon a matter of public concern” rather than “as an employee about a matter of personal interest”; (2) that “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) that “the employee’s speech was a substantial factor in the employee’s termination decision.”

The Court held that « liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating 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 Court argued that « clicking on the “like” button was equivalent to a substantive statement because it is a statement that a user « likes » something and this is conveyed by the universally understood « thumbs up » symbol. In the context of a political campaigns, the Court added that it is unmistakable that « liking » a page means that the user approves of the candidacy whose page is being liked.

If you feel your first amendment rights are being violated in your employment setting, contact the Harman Firm, LLP.