LEGAL INSIGHTS AND NEW DEVELOPMENTS IN INTERNET LAW & ONLINE BUSINESS

Bland v. Roberts: Free Speech And Facebook “Liking”

Posted on 1 June, 2012 in Internet Law and Intellectual Property by aaronklaw

Below the good ole’ Mason Dixon, at the U.S. District Court, in the Old Dominion state of Virginia, an employment lawsuit ostensibly fit for a modern-day Atticus Finch was recently heard – Bland v. Roberts. The drama involves the Hampton Virginia’s Sheriff’s Department, an election, an incumbent and the firing of several employees.

While the details of the actual staffing issue are better left for a human resources attorney, the case does have Internet law implications. Specifically it addresses the question of whether or not “liking” something on Facebook qualifies as “speech” protected by the First Amendment.

Internet Law Aspects of Bland v. Roberts: The Background Information

As previously stated, many of the lawsuit’s intricacies are better left for another discussion; but to gain a better understanding of why history books may treat Bland v. Roberts as a seminal Internet law case, it’s important to lay out a few facts.

Back in 2008, B.J. Roberts was busy campaigning to retain his Sheriff’s appointment. His opponent was Jim Adams, a former Lieutenant Colonel on the force. Like most campaigns, the one between Roberts and Adams was hard fought. Accusations of improper conduct were flung (one of the most salacious being that Roberts used prisoners to set up fundraising events) and both promised to do their best for the citizens of Hampton. Like all elections, both had their supporters.

Documents allege that Roberts – after discovering several department employees were actively supporting Adams – held a meeting where he cautioned his staff to “get on the ‘long train’ with him rather than riding the ‘short train’” with his challenger.

Bland and several other staff members, however, decided to stand behind Adams. During discovery, these “rogue” staffers testified that while they actively supported Adams outside of work, they were certain to remain quiet about their political leanings on the job – a fact that arguably came back to hurt their case in the end.

While most named plaintiffs admit that they shied away from talking politics at work, they did participate in Adams’ events. One individual also indicated he interacted with Adams’ Facebook page by “liking” it. (The same individual claims to have originally posted an opinion in favor of Adams on the Facebook wall, but then decided to remove it – ostensibly to avoid any problems at work.)

Well, after the election results were in and Robert’s emerged victorious, several of the Adams-supporting Sheriff’s Department employees were summarily released of their duties. Many of these staffers filed an unlawful termination suit. In it they argued that their First Amendment rights to freedom of speech and freedom of expression were violated when Robert’s fired them.

Legal Precedence Considered In Bland v. Roberts

When deliberating, the judge looked to McVey v. Stacy – a lawsuit that set legal precedence for cases involving personnel and the First Amendment. In McVey, the Court laid out a three-pronged approach to analyzing freedom of expression when determining if a firing is lawful or not.

1) Was the Defendant speaking as a private citizen on a matter of public concern, or as an employee about a personal matter?

2) Is the statement in question of such import to the public that it outweighs the government’s interest in providing effective services?

3) Was the speech a substantial factor in the firing in question?

 

Roberts testified that the employees in question were let go due to city-wide budget cuts, poor performance and “hindrance to the harmony and efficiency of the office” and had documentation to back up his assertions, so the answer to question three in the McVey test – in Bland v. Roberts – would be “no.”

The other two points deal with whether or not the speech in question was of such import that it outweighed any civil employee considerations. This is where things get interesting from an Internet law standpoint. In this case – one of the first of its kind – the judge ruled that a mere like on a Facebook profile or wall does not constitute “speech” as defined and protected by the First Amendment.  As such, the employees’ claims that they were fired for exercising their freedom of speech become a moot point if the act of “liking” is not considered speech. In other words, the judge basically reasoned that you can’t sue someone for violating your free speech rights, if you didn’t make any “speech” or “statement” to begin with. So, the lawsuit was dismissed.

The Implications Of Declaring Facebook Likes Unprotected Speech

The decision in Bland v. Roberts could have serious online free speech implications if adopted as standard precedence. After all, today’s technological advancements go a long way in providing users ways to express themselves in as few characters as possible.

We’re a culture that has grown accustomed to the ease of clicking a check mark on a poll to make our voice heard; we type short codes to vote for our favorite competitors; heck, one of the most popular social networking platforms is based on one’s ability to convey a thought in 140 characters or less.

It will be interesting to see if this standard holds up. On the one hand it’s important that our new-fangled means of communication are taken into consideration when ruling on Internet law cases and crafting Internet law legislation; but at the same time, considering the ease with which bots can spoof “likes,” maybe it’s not a terrible idea to only protect speech that conveys a complete thought of an individual.

What do you think?