Alan Schorr’s Employment Case of The Week ending September 20, 2013

Bland v. Roberts. — F.3d —-, 2013, WL 5228033 (4th Cir. September 18, 2013)

This week’s case is the Appellate decision in a case which I featured exactly a year on September 17, 2012, Bland v. Roberts (blog). The most interesting part of this most interesting 85 page opinion involves the question of whether “liking” a Facebook page can be constitutionally protected free speech.

The lawsuit arose after B.J. Roberts was elected Sheriff of the City of Hampton, Virginia, and then decided to not to re-appoint six employees whom he perceived had opposed his election. The six employees had various reasons for why they alleged that Roberts had violated their First Amendments rights by refusing to reappoint them. The district court Judge granted summary judgment on all six claims, and all plaintiffs appealed to the Fourth Circuit.

Two of the employees, Daniel Ray Carter, Jr., and Robert W. McCoy, were deputies who claimed that they were not reappointed because of posts that they had made on Facebook. Carter’s conduct consisted of his “liking” Roberts’ opponent’s campaign page on Facebook. The district court concluded that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection” and that the record did not sufficiently describe what statement McCoy made. The American Civil Liberties Union, Facebook, Inc., and the National Association of Police Organizations all filed amicus briefs and argued in support of the plaintiffs.

The Circuit Court explained in great detail the process in which clicking a Facebook “like” causes messages to be posted to other Facebook friends and/or the public announcing that the user “likes” the particular post. The Court noted that every day three billion Facebook “likes” are posted. In Carter’s case, he had merely posted a “like” of the website of Roberts’ opponent. The Court found that Carter’s statement was no different than putting a campaign sign on his lawn. The Facebook amicus had also likened it to wearing a button that says “I like Ike” (common during the Eisenhower presidential campaigns).

The Court reversed the district court on the Constitutional issue, holding that clicking “like” does, in fact, constitute speech that is entitled to protection. It reversed summary judgment for Carter. With regard to McCoy, his speech was more overt than Adams. McCoy posted an image of the sheriff’s opponent’s web site on his Facebook, indicating his support. This was also found to be protected speech. Dixon was also found to have engaged in protected speech because he had a bumper sticker on his car supporting the opposing candidate. All three plaintiffs had summary judgment reversed.

The other three plaintiffs were not as fortunate. The Court upheld summary judgment on the other three, primarily because they could not establish that the Sheriff was aware of their political leanings, and because they failed to establish causation. The Court also found that Roberts was protected individually by qualified immunity because, based upon conflicting prior case law, Roberts may have believed that he had the right to not re-appoint employees that did not support him, and therefore the plaintiffs could not overcome the qualified immunity. There was a long and very spirited dissent arguing that the Sheriff should not have been individually protected by qualified immunity.

So, even though this was a win for amici Facebook and ACLU, only three of the Plaintiffs overcame summary judgment against the Sheriff’s Office, and they were denied recovery from Roberts individually.

Interestingly, the same day that the Bland v. Roberts case was decided, the New Jersey District Court approved for publication a case decided in August, Ehling v. Monmouth-Ocean Hospital Service Corp., 2:11-cv-03305 (D.N.J. Aug, 20, 2013). The Ehling case also featured a very detailed explanation as the technical functioning of Facebook. In that case, the District Court held that an employer’s unauthorized access to an employee’s private Facebook page could constitute a violation of the Federal Stored Communications Act (or “SCA”), 18 U.S.C. §§ 2701-11. Unfortunately for the plaintiff Deborah Ehling, the Court found that the employer had not made an unauthorized access because one of Ms. Ehling’s “friends” provided a copy of Ehling’s offensive Facebook posting to the employer without solicitation.

Facebook and social media continue to create new headaches for the Courts, but these two opinions demonstrate that Courts are starting to understand the way that people communicate with others in the 2010s. The clear trend is that social media speech and electronic speech is being afforded the same Constitutional protection as traditional spoken and written speech, and in some cases more due to the electronic protection laws. This blog will continue to monitor and report these important cases.

Plaintiffs’ Counsel: James Harrell Shoemaker, Jr., Patten, Wornom, Hatten & Diamonstein, LC.

Defendants’ counsel: Jeff W. Rosen, Lisa Ehrich, Pender & Coward, PC.

Amicus counsel: For Facebook – Aaron M. Panner, Andrew E. Goldsmith, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C.; For ACLU – Rebecca K. Glenberg, American Civil Liberties Union Of Virginia Foundation, Inc.; For National Association of Police Organizations – J. Michael McGuinness, The McGuinness Law Firm, William J. Johnson, National Association of Police Organizations.

Appellate Judges: Traxler, Chief Judge, Thacker, Circuit Judge, and Ellen Lipton Hollander, United States District Judge for the District of Maryland, sitting by designation. Hollander wrote a separate opinion concurring in part and dissenting in part.

District Court Judge – Raymond A. Jackson, U.S.D.J.