What is free speech? How far does it extend? What are the standards applicable in your situation? You have to be fully aware of your actions and do thorough legal counseling before clicking on that “like” button on Facebook – former employees in the Hampton Sheriff's Office found out. In the case of US District Court of Eastern Virginia, Bland v. Roberts, 2012, the learned court held that Facebook “likes” are not protected under the First Amendment, as they do not constitute a form of speech or expression envisaged in the Constitution.
Surprisingly, the court's logic is clear, and to those of us who understand the law as it is (which may change any time with further interpretations from the court) the court can hardly be blamed for drawing the conclusions it did. However, lawyers of the plaintiff and their associates have been doing their own media campaign criticizing the court's decision. To us, given that the plaintiffs' allegation of connecting their job termination with their Facebook ‘likes' of the candidate who lost may be true, it also goes to show again that social network activity can be irresponsible and can be denied protection.
In a nutshell, the case as alleged by the plaintiffs is that they used to work as civilian employees in the Hampton Sheriff's Office when the Sherrif's chair fell vacant and there was an election. The election for the chair was between B.J. Roberts and Jim Adams. The plaintiffs, who worked under Roberts engaged in activities of the opponent camp including placing pro-Adams bumper sticker on their cars, attending Adams-sponsored cookout, and ‘liking' Adams on Facebook page.
Eventually, the race was won by Roberts, who became Sheriff, and promptly made changes to the office making several terminations including the jobs of the plaintiffs. The plaintiffs claim that Roberts' actions were retaliatory to their expressions protected by the First Amendment.
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The court held that “In order to prove that an adverse employment action violated their First Amendment right to freedom of speech. The Plaintiffs must satisfy the three-prong test the United States Court of Appeals for the Fourth Circuit laid out in McVey v. Stacy, 157 F.3d 271 (4th Circ. 1998):
“Thus, to determine whether a public employee has stated a claim under the First Amendment for retaliatory discharge, we must determine (1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a personal matter of personal interest; (2) whether the employee's interest in speaking upon the matter of public concern outweighed the government's interest in providing effective and efficient services to the public; and (3) whether the employee's speech was a substantial factor in the employee's termination decision.”These principles are time tested and the court was entirely logical in applying them to dismiss the case of the plaintiffs with a summary judgment on 24th April. However, what has come out of the controversy is that Facebook “likes” in case of employees, may not be altogether ‘likable.