What’s Not To Like About Protected Speech?

At the expense of sounding too corny, sometimes these issues are fascinating.   As much as they are practical, from a takeaway standpoint.

Back on May 8, 2012, I blogged about an interesting federal case in Virginia that addressed what it means to like something.   As I am sure you will remember from that post, a Sheriff in Hampton, Virginia had fired six of his workers when one of them “liked” the Facebook page of an individual running for election against the Sheriff.   The employees sued, and the federal judge in the Eastern District of Virginia dismissed the lawsuit.  That judge ruled that the employees were not entitled to free speech protection, finding:  “It is the Court’s conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”

Fast forward a year and a half, and the appellate court has just reversed that decision, allowing the lawsuit to proceed again.   The 81-page decision is a great example of how social media and technology has really impacted traditional notions of employment law, such as retaliation and employee free speech.   The appellate court began the relevant portion of the decision by framing the issue this way: “To consider whether this conduct amounted to speech, we first must understand, as a factual matter, what it means to ‘like’ a Facebook page.”  

Unlike the first judge, the appellate court ultimately reached the conclusion that to “like” a Facebook page is the 2013 version of protectable speech.   Read this interesting analysis, and decide whether you agree with it in the context of what you believe “speech” is and what you believe one does when clicking a “like” button:

“Carter’s clicking on the ‘like’ button also caused an announcement that Carter liked the Campaign Page to appear in the news feeds of Carter’s friends.  And it caused Carter’s name and his profile photo to be added to the Campaign Page’s ‘People [Who] Like This’ list.  Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech.   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.  In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable.”

And here’s the kicker, tying social media and technology to traditional notions of expression: 

“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.   Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression.  The distribution of the universally understood ‘thumbs up’ symbol in association with Adam’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adam’s candidacy. . . .  In sum, 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.”

I don’t know.   On the one hand, a mere click of the “like” may simply be a non-substantive way to have other friends view someone else’s page or link, without the like-er expressing a position one way or the other.   In that sense, are we in danger of expanding the boundaries too far to allow potentially vague and ambiguous acts to constitute protected expression?  On the other hand, there is a fairly good history of American jurisprudence where conduct (and not a spoken or written word) constitutes protected speech, such as the desecration of the American flag being protected as symbolic speech. 

Employer Take Away:   What should you as an employer take away from this development?   

Courts and government agencies will continue to test the boundaries of legal concepts that existed long before social media and technology took us over.   Employees will continue to engage in activities through social media that you might not like, and might not even consider to be an activity in the first place.  A technologically-enabled message without actual verbiage, and perhaps without any act at all, other than a mouse click.   But will these social media acts constitute protected concerted action for purposes of the NLRA?    Will they constitute protected activity for purposes of anti-retaliation statutes in the private sector?

The more we get judicial decisions on what is and what is not considered to be protected activity in this new social media era, the more critical it is for your company to understand what it can and cannot do in response to such activity.   Whether you like it or not. 

About Michael Schmidt

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.