Don’t ‘Like’ This Post Or Your Boss Can Fire You

Daniel Ray Carter and Robert McCoy were deputies in the Hampton, Virginia sheriff’s office. Were, that is, until they made the mistake of “liking” their boss’ opponent’s Facebook page during a contested sheriff election. They were both fired shortly after their boss won reelection.

As government employees, Carter and McCoy are protected by the First Amendment. Nevertheless, a federal judge in Virginia denied their claim that they were unconstitutionally fired for expressing their political view on the unusual theory that “liking” a Facebook page does not constitute a form of expression protected by the First Amendment:

It is the Court’s conclusion that merely “liking” a Facebook page is insufficient to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record. . . . These illustrative cases differ markedly from the case at hand in one crucial way: Both [precedents] involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’ Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection.

As Eugene Volokh points out, this is not correct. The First Amendment does not simply shield “actual statements,” it shields a long list of expressive activity, including “saluting a flag (and refusing to do so), wearing an armband to protest a war, displaying a red flag, and even ‘[m]arching, walking or parading’ in uniforms displaying the swastika.” If passively wearing a black armband speaks clearly enough to convey a First Amendment protected message, than surely clicking a button that indicates approval of a political candidate or his message speaks just as clearly.

Indeed, it’s difficult to find any meaningful distinction between Carter and McCoy’s actions here and any number of activities protected by the First Amendment beyond the fact that they used a new method of communication to convey their message. But this cannot be a constitutionally relevant distinction. The First Amendment didn’t stop functioning with the invention of the telephone, the instant message, the text message or the email. There’s no reason why it shouldn’t apply to social media.

Additionally, there is always something perverse about court decisions which prevent career employees from speaking out about how their boss is doing their job. Few people are better suited to judge the current sheriff than his deputies, and they should not be discouraged from sharing their views with the public.