Alan Schorr’s Case of The Week ending August 17, 2012

Bland v. Roberts, Appeal Docket No. 12-1671 (4th Circuit – Pending); Trial Court opinion at 2012 WL 1428198 (E.D.Va. April 24, 2012)

Just when I thought that the Courts could not top the decision in Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010) for judicial stupidity in interpreting the First Amendment, the Eastern District of Virginia penned the opinion of Bland v. Roberts. In this case, a Federal Judge actually held that “liking” a political Facebook page does not constitute Constitutionally protected speech under the First Amendment. The Plaintiffs have appealed to the Fourth Circuit, and this week both the ACLU and Facebook have filed amicus briefs making very convincing arguments as to why “liking” a Facebook site is Constitutionally protected speech. This case is probably on its way to the top, so SCOTUS may have an opportunity to see if they can top themselves regarding this ridiculous decision.

This is an employment retaliation case, brought under 42 U.S.C. §1983, essentially alleging retaliation for supporting an opposing political candidate. Two civilian employees and six deputies brought suit against the newly-elected Sheriff whom they claim terminated them because they exercised their First Amendment rights in supporting the opposing political candidate. Reading the Complaint, it is not immediately obvious that the Facebook posts are a focal point of this case. The Court could, and did, dismiss the case for six different reasons, including other First Amendment issues, and factual issues in which the Court found that there was no evidence that the Sheriff even knew that these employees were associating with the opponent’s campaign. But, the Court’s ruling on the Facebook issue was so bizarre that it has grabbed the headlines and energized amicus, and will now assure that the case has a high profile appellate decision.

Judge Raymond A. Jackson, a Clinton appointee, is clearly not a Facebook user. He completely failed to understand that the clicking of “Like” on a Facebook page not only constitutes a statement that “I like this page”, but also places a statement on the user’s page that states, “John Doe likes this Facebook page.” The Judge examined other cases where statements on Facebook have been accorded Constitutional protection. Mattingly v. Milligan, 2011 WL 5184283, (E.D. Ark. 2011); Gresham v. City of Atlanta, 2011 WL 4601022 (N.D. Ga. 2011). The judge differentiated by holding that those cases involved actual words, while this case involves only the click of a button:

These illustrative cases differ markedly from the case at hand in one crucial way: Both Gresham and Mattingly involved actual statements. No such statements exist in this case. Simply 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’s posts from one click of a button on Adams’ Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can 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. Bland at *4.

The amicus briefs by Facebook and the ACLU patiently explain to the Fourth Circuit all of the reasons why Judge Jackson’s opinion so widely missed the mark. As Facebook pointed out:

When Carter clicked the Like button on the Facebook Page entitled “Jim Adams for Hampton Sheriff,” the words “Jim Adams for Hampton Sheriff” and a photo of Adams appeared on Carter’s Facebook Profile in a list of Pages Carter had Liked – the 21st century equivalent of a front yard campaign sign.

The ACLU noted that there are 300,000 “likes” per minute on Facebook. The brief questions what the difference is between wearing a button that says “I like Ike” and pressing a “Like” button on Dwight Eisenhower’s Web page, had one existed. These two briefs were entertaining and replete with very useful and important legal arguments. Accordingly, I have chosen this as my case of the week, and have attached the two amicus briefs, which should be read and stored away for future use. Ultimately, the 4th Circuit Court and SCOTUS will have ample other reasons to affirm or reverse the District Court’s decision, so theoretically this case could be decided without addressing the Facebook issue.

As both Federal and New Jersey Courts get bogged down in whether the Constitution protects employment, it will become increasingly important for practitioners to educate the Judiciary, which currently seems confused and behind the times.

And if you like this blog, please exercise your Constitutional rights and click the Facebook “like” button on the top of this page!

Amicus Briefs: ACLU // Facebook

Plaintiff’s counsel: James Harrell Shoemaker, Jr., Jason Eric Messersmith, Patten Wornom Hatten & Diamonstein LC and William V. Hoyle, Jr.

Amicus counsel: Aaron M. Panner and Andrew E. Goldsmith, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. for Facebook; Aden J. Fine and Kathryn A. Wood for American Civil Liberties Union; Rebecca K. Glenberg for American Civil Liberties Union of Virginia Foundation, Inc.

Defendants’ counsel: Jeff Wayne Rosen, Jeffrey A. Hunn, Pender & Coward, P.C.

Judge: Raymond A. Jackson, U.S.D.J.