Outten & Golden: Empowering Employees in the Workplace

A “Like” is a Like, Court Says, and is Protected Free Speech

September 25th, 2013 | Daniel Schwartz

portrait-schwartzIn a closely watched case, the Fourth Circuit Court of Appeals held yesterday that a “Like” on Facebook is a form of speech that is protected under the First Amendment.

In doing so, it kept alive a lawsuit brought by an employee who claims he was fired for supporting an political candidate who was running against his boss.  The WSJ Law Blog has some additional details and you can download the decision here.

The Court said that a “like” is the internet equivalent of a candidate yard sign:

 In sum, liking a political candidate’s campaign pagecommunicates the user’s approval of the candidate and supportsthe campaign by associating the user with it. In this way, itis the Internet equivalent of displaying a political sign inone’s front yard, which the Supreme Court has held issubstantive speech

While the case arises in Virginia, it could have some important implications to employers in Connecticut, as I commented in a Law360 article (registration required) late yesterday:

The appeals court’s conclusion that former sheriff’s deputy Daniel Carter’s “like” of a candidate challenging the incumbent for a sheriff post in Virginia was protected by the First Amendment came as no great surprise to attorneys following the case and showed that courts will treat social media communications the same as more conventional modes of self-expression, lawyers told Law360 on Wednesday.

“The court’s decision is confirming what many of us have long suspected, which is that speech on Facebook may be protected under the First Amendment,” said Shipman & Goodwin LLP partner Daniel Schwartz.

The ruling will likely have an impact in some states, including Connecticut, that protect private employees from being disciplined for exercising First Amendment rights, Schwartz said. But the decision may also shed light on how the NLRB will tackle the question of whether an employee clicking the “like” button is protected by the National Labor Relations Act, an issue pending before the labor board in a case called Triple Play Sports Bar.

Of course, the decision leaves a lot of questions unanswered. Will a “like” always be protected? What if you are “liking” a page just to track it? How do you know when a “Like” is really for liking a page?

And of course, what about other similar actions on other social networks? Is an “endorsement” on LinkedIn really anendorsementof an employee’s views? Is a retweet on Twitter a supportive role? What about a “+1? on Google+? Or a Heart on Instagram?

It can go on and on.  All these questions will continue to arise as long as social media continues its growth.

For employers, the decision confirms something I’ve preached about in our seminars: That online speech may be protected under state law or even the First Amendment under some circumstances.   Before taking action on such speech, make sure you understand the laws in play and seek local counsel if you have any concerns as well.

And, of course, if you like this post, feel free to “like” it below.  Though let’s agree that sometimes a “like” is really just something else entirely.

This article was originally printed on Connecticut Employment Law Blog on September 19, 2013.  Reprinted with permission.

About the Author: Daniel Schwartz is an experienced employment law attorney, a Bar leader, an award-winning author, and a noted speaker. He is a partner at Shipman & Goodwin LLP.

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