December 2013
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What's not to like?

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A federal circuit court of appeals finds liking Facebook pages to be constitutionally protected speech

by Jason C. Kim and Judith Kong
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In September, the U.S. Court of Appeals for the 4th Circuit held an employee terminated for liking the campaign page of his boss's political rival had engaged in constitutionally protected speech under the First Amendment. Although the case involved only public employees, the 4th Circuit's ruling in Bland v. Roberts is likely to inform other court and/or agency decisions seeking to assign legal significance to various forms of social media activity and may have a lasting and far-reaching effect on private-sector employers, as well.

The decision

In 2009, Sheriff B.J. Roberts of the Hampton Sheriff Department in Virginia ran for re-election to his post after serving as sheriff for 17 years. He was opposed by Jim Adams, a longtime lieutenant colonel in the same office, who resigned to run for election. During the campaign, two sheriff's deputies, Daniel Carter and Robert McCoy, expressed their support for Adams rather than Roberts via Facebook. Specifically, in late summer of 2009, Carter "liked" Adams' Facebook campaign page and authored and posted a message of encouragement. McCoy also posted an entry indicating his support for Adams' candidacy though he did not "Like" the Facebook page. Word of the two employees' Facebook activity spread quickly among others in the office and eventually reached Roberts.

Soon after learning of Carter and McCoy's Facebook activity, Roberts addressed his employees' support for Adams in several speeches he gave during various shift changes at the office. He expressed displeasure with the decision of some to support Adams and specifically communicated his disapproval of those who had endorsed Adams through Facebook. During one of these meetings, Roberts declared he would be sheriff for as long as he wanted and stated anyone who openly supported Adams would lose his or her job. Notably, after the meeting that occurred before Carter's shift, Roberts angrily approached Carter and told him: "You made your bed, and now you're going to lie in it. After the...



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