Facebook and Free Speech

Facebook and Free Speech

By David E. Inabinett

Social media has brought about all types of challenges in terms of matching up legal theories and protections with the advancements in technology which the law is often slow to keep up with. An issue recently determined by the 4th Circuit Federal Court of Appeals in Virginia speaks to online speech in the form of “liking” someone or something on Facebook and how it intersects with First Amendment protected speech.

In Bland v. Roberts, the question arose as to whether the act of clicking one’s mouse to “like” a politician’s campaign page qualifies as “speech” protected by the First Amendment. In Bland, a sheriff’s deputy “liked” the Facebook campaign page belonging to an opposing candidate running against the deputy’s boss. The deputy was fired and sued his former employer, arguing the termination was in retaliation for exercising his free speech rights. While courts had previously held that online communications could qualify as protected speech, the issue of whether the act of “liking” someone/something on Facebook was one of first impression.

The 4th Circuit analyzed that the nature of a “like” on Facebook was essentially a form of communication. The court further explained that this act was similar to communicating the user’s support, the internet equivalent of posting a political sign in one’s front yard, which our Supreme Court has held to be political speech.

Before rendering employment decisions based on employee’s online actions or activities, it is advisable to seek the advice of an attorney. There are certainly some online behaviors which, depending upon the circumstances, can justify disciplinary action up to termination. However, those may not always be as clear-cut as one might assume, and consulting with an attorney familiar with employment law and free speech issues can help you maneuver through an analysis of whether or not such action or “speech” is protected or may warrant discipline.

About the Author
David E. Inabinett is an Attorney and the Managing Member at Brinkley Walser, PLLC, in Lexington and Greensboro, NC. Inabinett was recently selected by his peers for inclusion in The Best Lawyers in America® 2014 in the fields of Elder Law, and Trusts and Estates (Copyright 2013 by Woodward/White, Inc., of Aiken, SC). Inabinett is a member of the National Academy of Elder Law Attorneys (NAELA™) and focuses his practice on Estate Planning, Elder Law, Education/School Law, Business Law, and Real Estate Law. He can be reached at (336) 249-2101 or via e-mail at dinabinett@brinkleywalserstoner.com. Brinkley Walser prides itself on providing new and cutting edge legal counsel built on a foundation of knowledge and integrity more than 125 years in the making. The firm has offices at 10 LSB Plaza in Lexington and in the First Citizens Building, 620 Green Valley Road, Suite 306, in Greensboro. Visit Brinkley Walser on the web at www.brinkleywalserstoner.com.