Can You Fire Someone for a Facebook 'Like'?

A Virginia court case examines whether "Likes" are protected under the First Amendment.
May 07, 2012

Your employees may not like this in the real world, but you may be able to fire them if you take offense to what they Like on Facebook.

Last week, a federal judge ruled that "liking" a Facebook page does not qualify for First Amendment protection.

In the run-up to a local election in November 2009, Sheriff B.J. Roberts of Hampton, Va., allegedly learned that six of his employees supported opponent Jim Adams by "liking" Adams' Facebook page. Not only that, they also put bumper stickers on their cars and attended a fundraising barbecue. (Roberts did not have a Facebook page.)

The Fallout

The sheriff then called a department meeting, advising staff to get on the "long train" with him rather than ride the "short train" with Adams. When Sheriff Roberts won reelection, he fired several employees, including three civilian workers and three uniformed deputy sheriffs who supported Adams.

Bobby Bland, Daniel Carter, David Dixon, Robert McCoy, John Sandhofer and Debra Woodward sued Roberts in the Eastern District of Virginia for violating their First Amendment rights.

Roberts justified his firings as cost-cutting, but he explained that the three fired deputies "hindered the harmony and efficiency of the office," also saying that he wanted to replace the civilians with sworn deputies, according to the motion for summary judgment against the complaint.

The Ruling

"The sheriff's knowledge of the posts only becomes relevant if the court finds the activity of 'liking' a Facebook page to be constitutionally protected," Judge Jackson wrote in the ruling. "It is the court's conclusion that merely liking a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed in the record." (The court said there was no evidence he was aware of the bumper stickers and fundraiser attendance, though it is not in dispute that he knew about the Facebook likes.)

"Simply liking a Facebook page is insufficient," Jackson wrote. "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 [one of the plaintiff's] posts from one click of a button on Adams' Facebook page."

Taking It Further

Marcus Messner, a journalism and mass communications professor at Virginia Commonwealth University who specializes in social media, told the The New York Times that the matter would probably have to be settled by a higher court.

“Going to a candidate’s Facebook page and liking it, in my view, is a political statement,” he said. “It’s not a very deep one, but you’re making a statement.”

Other courts have ruled that Facebook posts are constitutionally protected speech (to see one such case, click here), but Judge Jackson said those cases involved "actual statements," as opposed to just clicking a button.

How much of a factor was the "like" button in the firing? Jackson wrote that the point was moot if liking something is not constitutionally protected.

The sheriff has not "transgressed [any] bright lines," Jackson wrote.

Would you or do you look at your employees' Facebook likes? How would you react if they, for example, "liked" a competitor?

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