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.