A big part of why I am so intrigued by social media and employment law is because of the extent of information people are willing to share with others about themselves through these mediums. One way this can be accomplished is through the “like” feature on Facebook. Facebook describes the “like” feature as “a way to give positive feedback or to connect with things you care about on Facebook.” Once someone hits the “like” button, a caption to the content indicates his or her positive affirmation.
Consumer Reports (p. 28, June 2012) recently featured the extent to which people “like” things on Facebook. A national survey of active Facebook adults revealed that over the previous 12 months, 4.7 million “liked” a page pertaining to health conditions or treatments, 2.3 million “liked” a page regarding sexual orientation, 7.7 million “liked” a page relating to religious affiliation, and 1.6 million “liked” a page pertaining to a racial or ethnic affiliation. I raise these statistics with employers when I talk about social media because these all relate to protected class statuses under the Wisconsin Fair Employment Act, Wis. Stat. § 111.31 et seq. Taking an adverse employment action after learning an individual liked such things as these may open the door to a charge of unlawful discrimination.
A recent decision out of the Eastern District of Virginia is bringing front and center questions concerning the significance of a “like” in a First Amendment context. In Bland v. Roberts, 11CV0045 (E.D. Va. Apr. 24, 2012), several deputy sheriffs claimed they were unlawfully fired for supporting the sheriff’s election opponents in an election the incumbent sheriff ultimately won. Two of the plaintiffs claimed that the retaliation was due, in part, to the fact that they expressed support on the election opponent’s Facebook page. The court found the only evidence of a “statement of support” was through each individual “liking” the challenger’s Facebook page. The court found that a “like” was not sufficient speech to support the plaintiffs’ freedom of speech retaliation claim. The court explained:
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.
The plaintiffs in Bland appealed the court’s decision to the Fourth Circuit, which will now decide questions over “like.” What I find difficult to accept about this opinion is related to later commentary by the Bland court regarding bumper stickers. Another plaintiff in Bland alleged that he suffered similarly unlawful retaliation because, in part, he had a bumper sticker on his car that supported the sheriff’s opponent. Here the court observed, “If the Court had evidence the Sheriff was aware of the presence of the bumper sticker supporting Adams, then Dixon might have sufficiently alleged constitutionally protected speech.”
In this context, where individuals are expressing support for a political candidate, there is no significant distinction between one who communicates through a “like” and one who communicates through a “bumper sticker.” Although the latter is a traditional means of political expression that may be more familiar to the general public, the message sent by a bumper sticker is analogous to a “like” on Facebook and accomplished with similar ease. The time of year is fast approaching where we will all witness (to some, ad nauseum) single-word or short-phrase messages of support for candidates on a wide range of items. These expressions of support are identical to “liking” a candidate on Facebook. Each quickly identifies an individual’s political support for a candidate. Indeed, in Facebook’s amicus curiae brief supporting the argument that a “like” is speech protected by the First Amendment, it relies on analogy to campaign bumper stickers, signs, and other paraphernalia. (Brief for Facebook as Amicus Curiae, pp. 18-19, Bland v. Roberts, No. 12-1671 (4th Cir.).)
The significance of a “like” described in the Bland opinion also stands in contrast to the analysis of an Administrative Law Judge in proceedings under the National Labor Relations Act (NLRA) in Triple Play Sports Bar, 34CA12915 (ALJ Jan. 3, 2012). There, an employee was allegedly terminated after “liking” a former employee’s wall comment addressing the employer that stated, “Maybe someone should do the owners of [the Company] a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money….Wtf!!!” The ALJ found that “liking” the comment constituted protected concerted activity by the employee under Section 7 of the NLRA. The ALJ explained that such Facebook activity indicated “an assent to the comments being made, and a meaningful contribution to the discussion.” Id. at 9.
In the political context of Bland, there is a much clearer and stronger message sent by the “like” than any association to protected concerted activity with the “like” in Triple Play Sports Bar. The statement “liked” in Triple Play Sports Bar is simply too lengthy and indefinite to draw any firm conclusion over what was approved by the “liker” or the public message that individual intended to convey. As described above, the general public is well aware of the message presented by individuals who display the name of their favored political candidate during election season. “Liking” a Facebook page is just another way of carrying on this traditional activity. The same cannot be said for the statement “liked” in Triple Play Sports Bar, where there were multiple statements within a wall post. Serious questions are apparent over even what the individual approved of by clicking “like” under the Triple Play Sports Bar statement. Other employees likely would not have been able to distinguish what exactly the individual was trying to convey by “liking” the statement, placing in doubt whether the activity is actually concerted. There are too many questions in this context to conclusively state that a “like” is protected concerted activity in these circumstances.
Doesn’t it make you think twice about what’s in a “like”?