et seq<\/em>. Taking an adverse employment action after learning an individual liked such things as these may open the door to a charge of unlawful discrimination.<\/p>\nA recent decision out of the Eastern District of Virginia is bringing front and center questions concerning the significance of a \u201clike\u201d in a First Amendment context. In Bland \u00a0v. Roberts<\/em>, 11CV0045 (E.D. Va. Apr. 24, 2012), several deputy sheriffs claimed they were unlawfully fired for supporting the sheriff\u2019s 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\u2019s Facebook page. The court found the only evidence of a \u201cstatement of support\u201d was through each individual \u201cliking\u201d the challenger\u2019s Facebook page. The court found that a \u201clike\u201d was not sufficient speech to support the plaintiffs\u2019 freedom of speech retaliation claim. The court explained:<\/p>\nSimply 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\u2019s posts from one click of a button on Adams\u2019 Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can<\/em> 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.<\/p><\/blockquote>\nThe plaintiffs in Bland<\/em> appealed the court\u2019s decision to the Fourth Circuit, which will now decide questions over \u201clike.\u201d What I find difficult to accept about this opinion is related to later commentary by the Bland<\/em> court regarding bumper stickers. Another plaintiff in Bland<\/em> alleged that he suffered similarly unlawful retaliation because, in part, he had a bumper sticker on his car that supported the sheriff\u2019s opponent. Here the court observed, \u201cIf 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.\u201d<\/p>\nIn this context, where individuals are expressing support for a political candidate, there is no significant distinction between one who communicates through a \u201clike\u201d and one who communicates through a \u201cbumper sticker.\u201d 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 \u201clike\u201d 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 \u201cliking\u201d a candidate on Facebook. Each quickly identifies an individual\u2019s political support for a candidate. Indeed, in Facebook\u2019s amicus curiae brief supporting the argument that a \u201clike\u201d 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<\/em>, No. 12-1671 (4th Cir.).)<\/p>\nThe significance of a \u201clike\u201d described in the Bland<\/em> 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<\/em>, 34CA12915 (ALJ Jan. 3, 2012). There, an employee was allegedly terminated after \u201cliking\u201d a former employee\u2019s wall comment addressing the employer that stated, \u201cMaybe someone should do the owners of [the Company] a favor and buy it from them. They can\u2019t even do the tax paperwork correctly!!! Now I OWE money\u2026.Wtf!!!\u201d The ALJ found that \u201cliking\u201d the comment constituted protected concerted activity by the employee under Section 7 of the NLRA. The ALJ explained that such Facebook activity indicated \u201can assent to the comments being made, and a meaningful contribution to the discussion.\u201d Id.<\/em> at 9.<\/p>\nIn the political context of Bland<\/em>, there is a much clearer and stronger message sent by the \u201clike\u201d than any association to protected concerted activity with the \u201clike\u201d in Triple Play Sports Bar<\/em>. The statement \u201cliked\u201d in Triple Play Sports Bar<\/em> is simply too lengthy and indefinite to draw any firm conclusion over what was approved by the \u201cliker\u201d 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. \u201cLiking\u201d a Facebook page is just another way of carrying on this traditional activity. The same cannot be said for the statement \u201cliked\u201d in Triple Play Sports Bar<\/em>, where there were multiple statements within a wall post. Serious questions are apparent over even what the individual approved of by clicking \u201clike\u201d under the Triple Play Sports Bar<\/em> statement. Other employees likely would not have been able to distinguish what exactly the individual was trying to convey by \u201cliking\u201d the statement, placing in doubt whether the activity is actually concerted. There are too many questions in this context to conclusively state that a \u201clike\u201d is protected concerted activity in these circumstances.<\/p>\nDoesn\u2019t it make you think twice about what\u2019s in a \u201clike\u201d?<\/p>\n","protected":false},"excerpt":{"rendered":"
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 \u201clike\u201d feature on Facebook. Facebook describes the \u201clike\u201d feature as \u201ca way […]<\/p>\n","protected":false},"author":138,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[32,67,122],"tags":[],"class_list":["post-18104","post","type-post","status-publish","format-standard","hentry","category-computer-law","category-first-amendment","category-public","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/18104","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/138"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=18104"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/18104\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=18104"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=18104"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=18104"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
![\"\"](\"http:\/\/law.marquette.edu\/facultyblog\/wp-content\/uploads\/2012\/08\/facebook-like.jpg\" "\\"facebook")
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 \u201clike\u201d feature on Facebook. Facebook describes the \u201clike\u201d feature as \u201ca way to give positive feedback or to connect with things you care about on Facebook.\u201d Once someone hits the \u201clike\u201d button, a caption to the content indicates his or her positive affirmation.<\/p>\n