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The Washington Post has an article today on how Daniel Carter Jr. was fired  for "liking" a page for clicking the site's thumbs-up button. This was not a pornographic, racist, or other prohibited website--it was a Facebook page for a candidate who was challenging his boss.

This is part of iceberg tip of workplace free speech rights. I represent a client, Peter Van Buren, who was not only prohibited from using any social media--on his own time, on his personal computer--but the State was actively monitoring anything he did: blog, Tweet, update his status of Facebook, etc. The First Amendment should protect the digital "public sidewalks" of social media.

Both Carter and Van Buren's behavior is protected free speech.

Carter filed a lawsuit claiming that his First Amendment rights had been violated, which is now before the U.S. Court of Appeals for the 4th Circuit. Both Mr. Carter and Mr. Van Buren's "speech" raise substantial constitutional questions and create the appearance of impermissible retaliation for their criticism--Carter's so tacit that you can't even call it "criticism," and Van Buren's more open--of the head of the sherrif's department and the State Department, respectively.

The Supreme Court has made clear--via a case called Pickering v. Bd. or Educ., 391 U.S. 563, 568 (1960) and its progeny--that public employees are protected by the First Amendment when they engage in speech about matters of public concern. These rights can be overcome only if the employee's interest in the speech is outweighed by the government's interest in the orderly operation of the public workplace and the efficient delivery of public services by public employees.

The Supreme Court has also held that public employees retain their First Amendment rights when speaking about issues directly related to their employment, as long as they are speaking as private citizens. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).  It is clear in both the cases discussed in this blog that both Mr. Carter and Mr. Van Buren were "speaking" in their own voice and not on behalf of the local Police Department or the federal State Department.

If the lower court’s ruling that “liking” a page does not warrant protection because it does not involve "actual statements" is upheld, a plethora of Web-based actions--from clicking "like" on Facebook to re-Tweeting something--won’t be protected as free speech.

The Hampton, Va. sheriff's actions and the State Departments actions are unconstitutional. Their use of various computer technologies to communicate concerned matters of public concern--in Carter's case, who is to be elected Sheriff, and in Van Buren's case, the reconstruction effort in Iraq.

As new technologies emerge daily, the law struggles to keep apace with the modern communications landscape, but the First Amendment must be interpreted to protect these new modalities of communicating. As the ACLU points out:

Pressing a ‘like’ button is analogous to other forms of speech, such as putting a button on your shirt with a candidate’s name on it.
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Comment Preferences

  •  Obviously would be a snap-firing in the private (2+ / 0-)
    Recommended by:
    HappyinNM, G2geek

    sector, but the rub's in the details. Jesselyn, what do you think is the precedent, or perhaps some established law, on how the 1st Amendment interacts with the employment of people with the government? It seems to be a different scenario...because while you're being fired by your employer (in this case for openly supporting your boss's challenger), you're also being "fired" by the government for speech.

    •  Who'd wanna work for that a$$hole anyway? nt (1+ / 0-)
      Recommended by:
      G2geek

      Happy just to be alive

      by exlrrp on Thu Aug 09, 2012 at 06:36:46 AM PDT

      [ Parent ]

    •  If his employer works for the government, (1+ / 0-)
      Recommended by:
      G2geek

      he is prohibited from campaigning and working at the same time, under the Hatch Act. So, this is quite the quandary.

      Your left is my right---Mort Sahl

      by HappyinNM on Thu Aug 09, 2012 at 06:45:39 AM PDT

      [ Parent ]

      •  The Hatch Act only applies to federal employees... (0+ / 0-)

        ...and this guy worked for the sheriff's office.

        Does Virginia have a similar law on the state level?

        "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

        by JamesGG on Thu Aug 09, 2012 at 06:50:35 AM PDT

        [ Parent ]

        •  When I worked for the State, we were (0+ / 0-)

          under the Hatch Act, and it was referred to as "the Hatch Act." It never occurred to me that the Hatch Act didn't cover all government employees. The sheriffs in NM work for the County. I guess it's time I do some research.

          Your left is my right---Mort Sahl

          by HappyinNM on Thu Aug 09, 2012 at 07:58:07 AM PDT

          [ Parent ]

      •  Interestingly, Hatch Act is not even raised by (4+ / 0-)

        either side in the litigation. Besides, I don't think it applies to state-level government.

        My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

        by Jesselyn Radack on Thu Aug 09, 2012 at 08:15:42 AM PDT

        [ Parent ]

    •  which is to say, almost all employees. (0+ / 0-)

      If we tolerate private-sector employers having a right to fire employees for protected political speech conducted on their own time with their own resources, then there is nothing left.

      If the law fails to protect those employees, then in effect it acts by omission to accomplish the same repression of speech that would usually be accomplished by comission.  

      And when all means of peaceful recourse have unacceptable consequences, the barriers against violent means of recourse are eroded.  

      "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

      by G2geek on Thu Aug 09, 2012 at 07:30:14 AM PDT

      [ Parent ]

      •  This circumstance is different than general (0+ / 0-)

        speech imo; it's a direct affront to the "boss" which I think is probably not best for the organization in the private sector. In terms of "tolerate", no, I don't think we shouldn't protest when someone is fired because they have an Obama sticker or take part in a general protest, etc.

    •  Pickering, which I cite in the diary, is the (4+ / 0-)

      seminal case.

      The public/private distinction you point out is valid.  The public's interest in hearing speech about these issues from government employees receive greater protection.  Waters v. Churchill, 511 U.S. 661, 674 (1994) ("Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions.")

      My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

      by Jesselyn Radack on Thu Aug 09, 2012 at 08:14:44 AM PDT

      [ Parent ]

  •  OT. (3+ / 0-)
    Recommended by:
    GoGoGoEverton, blueoasis, JVolvo

    Jesselyn,

    Saw you on tv the other day. Very pretty lady. Said "f*ck." Perfect!

    Your left is my right---Mort Sahl

    by HappyinNM on Thu Aug 09, 2012 at 06:47:47 AM PDT

  •  When the government places so many limits (6+ / 0-)

    on speech how can they still call it "free"?  The erosion of our rights in recent years is astounding in it's scope and yet, most Americans have not a clue.

    "A nation of sheep will beget a government of wolves." Edward R. Murrow

    by temptxan on Thu Aug 09, 2012 at 07:04:40 AM PDT

  •  I liked your diary by rec'ing & tipping. (8+ / 0-)

    I'm retired but I have no doubt that in my state, most officials would love to cut or end my retirement benefits if they could for my having done so, especially since as with many ALEC-controlled states looking for ways to do so is currently a priority.

    Keep fighting for us, jesselyn.  Many of us understand the importances of your work and that the outcomes will eventually affect everyone at some level or to some degree whether or not they realize it now.

    My sincerest admiration and appreciation.

    99%er. 100% opposed to fundamentalist/neoconservative/neoliberal oligarchs.

    by blueoasis on Thu Aug 09, 2012 at 07:15:00 AM PDT

  •  As Scalia recently pointed out in his decision (1+ / 0-)
    Recommended by:
    Don midwest

    to execute a mentally retarded man, Constitutional rights only apply to those the 1% chooses.  Poor, brown, non-christian, among aothers as the powers that be pick,  are no longer provided protection under the law.

    -approaching Curmudgeonry with pleasure

    by Calfacon on Thu Aug 09, 2012 at 07:22:43 AM PDT

      •  calfacon may be paraphrasing... (2+ / 0-)
        Recommended by:
        codairem, aliasalias

        Here' is Wilson's attorney on Scalia's decision to deny certiorari to his client.

        “We are gravely disappointed and profoundly saddened that the United States Supreme Court has refused to intervene to prevent tonight’s scheduled execution of Marvin Wilson, who has an I.Q. of 61, placing him below the first percentile of human intelligence. Ten years ago, this Court categorically barred states from executing people with mental retardation. Yet, tonight Texas will end the life of a man who was diagnosed with mental retardation by a court-appointed, board certified specialist.

        “It is outrageous that the state of Texas continues to utilize unscientific guidelines, called the Briseño factors, to determine which citizens with intellectual disability are exempt from execution. The Briseño factors are not scientific tools, they are the decayed remainder of an uninformed stereotype that has been widely discredited by the nation’s leading groups on intellectual disability, including the American Association on Intellectual and Developmental Disabilities. That neither the courts nor state officials have stopped this execution is not only a shocking failure of a once-promising constitutional commitment, it is also a reminder that, as a society, we haven’t come quite that far in understanding how so many of those around us live with intellectual disabilities.”

        No System of Justice Can Rise Above the Ethics of Those Who Administer It. (Wickersham Commission 1929)

        by No Exit on Thu Aug 09, 2012 at 08:53:18 AM PDT

        [ Parent ]

  •  Young people put out too much info (0+ / 0-)

    they don't have any idea about future consequences

    when they realize that there is little privacy, would that lead to a huge drop in participation?

    I know many younger adults who don't even engage in political discussions because it could get have adverse effects on employment.

    In other words, if you speak out that the Republic is in danger, it puts you in danger.

    Democracy is about power not voting.

  •  Some judges don't get technology. (5+ / 0-)
    Recommended by:
    PhilJD, JVolvo, FG, kurt, ladybug53

    Presumably, the 4th Circuit judges at least have clerks who do:

    In the Sheriff’s Office case, Volokh said, Jackson upset a precedent with deep roots in U.S. law.

    “The judge’s rationale that a like on Facebook is insufficient speech is not right,” Volokh said. “The First Amendment protects very brief statements as much as very long ones. It even protects symbolic speech, like burning a flag.”

    Volokh, like the ACLU, says liking is similar to putting a bumper sticker on a car, so it should be protected. He said he thinks the 4th Circuit will probably overturn the district judge’s ruling — but if it does not, it would be a significant moment.

    “If the 4th Circuit agrees with the judge — that liking is not protected speech — that would suggest an overturning of precedents,” Volokh said. “It would be interesting to see what the Supreme Court would do with that decision.”

  •  Here's a question--can an Obama campaign staffer (1+ / 0-)
    Recommended by:
    codairem

    be fired for wearing a Romney button, or having a Romney yard sign?

    I think that the lower court's ruling is completely incorrect--that technological 'likes' are insufficient speech.  I mean--money is legitimate speech but a 'like', which is nothing if not a simple means of self-expression, is not?  That's nonsense and I think that would be overturned.  

    What I'm less clear about, is the arena of professionalism/representation of the office.  Does free speech continue to hold in the context of the job?  Obviously that is one of the areas in which we see the most restrictions.  So does the 'like', constitute the way in which the employee has represented himself in the professional context?  That seems to be the sheriff's argument.  I think that is a stronger argument than the 'insufficient expression' one put forth by the lower courts.

    But I don't know the caselaw.  I find it interesting.

  •  so, looking at the 'Hatch Act', which can be (1+ / 0-)
    Recommended by:
    ladybug53

    applied to states in some circumstances, and has been upheld by the S.C. twice on 1st amendment grounds

    Here is the list of activities allowed/disallowed:

    • These federal employees may:
    • register and vote as they choose
    • assist in voter registration drives
    • express opinions about candidates and issues
    • participate in campaigns where none of the candidates represent a political party
    • contribute money to political organizations or attend political fund raising functions
    • attend political rallies and meetings
    • join political clubs or parties
    • sign nominating petitions
    • campaign for or against referendum questions, constitutional amendments, municipal ordinances

    So this would seem to weaken the sheriff's case, particularly the line that employees 'may express opinions about campaigns and issues'.

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