According to an article in The Atlantic, “in November of 2009, B.J. Roberts, the sheriff of Hampton, Virginia, ran for re-election. A group of workers in Roberts’ office, however, among them one Bobby Bland, weren’t enthused about the prospects of their boss’s continuation in his role. So they took to their Facebook accounts to protest the run: They Liked the campaign of Roberts’s opponent, Jim Adams. Despite the minuscule mutiny, however, Roberts won the election. He then chose not to retain Bland and the others as his employees. The dismissals, Roberts said at the time, were the result not only of budgeting concerns, but also of the workers’ hindrance of “the harmony and efficiency of the office. The sheriff had not liked his workers’ Likes.” They filed suit and, “the suit alleges that Roberts retaliated against the plaintiffs in violation of their First Amendment rights by choosing not to reappoint them because of their support of his electoral opponent.”
The trial court threw out the case. The district court concluded that Carter, McCoy, and Woodward had all failed to allege that they engaged in expressive speech and that Dixon had not shown that his alleged speech was on a matter of public concern.
In the late summer of 2009, Carter and McCoy visited Adams’s campaign Facebook page and made statements on the page indicating their support for his campaign. Specifically, Carter “liked” the page and “wrote and posted a message of encouragement” that he signed. McCoy also “posted an entry on the page indicating [his] support for [Adams’s] campaign.” Carter’s and McCoy’s Facebook actions became well-known in the Sheriff’s Office as many were shocked because “they appeared not to be supporting the sheriff.” Colonel Bowden, who was the second most senior officer in the Sheriff’s Office, learned of Carter’s and McCoy’s presence on Adams’s Facebook Page and informed Sheriff Roberts.
The Sheriff angrily approached Carter and “ma[de] several intimidating statements.” He then added, “You made your bed, and now you’re going to lie in it – after the election, you’re gone.” Sure enough, he was.
The trial court did not think that “liking” on Facebook was expressive activity. “‘Liking” on Facebook is a way for Facebook users to share information with each other. The ‘like’ button, which is represented by a thumbs-up icon, and the word ‘like’ appear next to different types of Facebook content. Liking something on Facebook ‘is an easy way to let someone know that you enjoy it.’” The Circuit Court disagreed. “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”
“In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.” The claims of the three deputies who had engage in political speech were upheld. The District Court was reversed and the case sent back for trial.
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