Facebook “Likes” Are Protected Free Speech

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Beth SlagleBy Beth Slagle

The Founding Fathers may not have had the foresight to protect Facebook activity in the Bill of Rights, but courts are increasingly applying old media First Amendment protection to new forms of media.

A recent court case illustrates many courts’ prevailing view of employees’ protected rights to use social media for the same purposes that they may use traditional media. In the case, six former employees of the Hampton, Virginia sheriff’s office sued the sheriff for wrongful discharge. The employees alleged that the sheriff fired them as retaliation for their support of his opponent’s campaign. The support that one of the former employees gave was to click “like” on the opponent’s Facebook page.

The lower court dismissed the lawsuit, saying that merely clicking a button was not the equivalent of expressing an opinion that would be considered protected free speech. The court stated that to constitute free speech, the employee would have had to take much more substantive actions than one click.

The employees appealed, backed by briefs from both Facebook and the American Civil Liberties Union. The appeals court ruled in favor of the employees and reinstated the lawsuit.

In rendering its decision, the appeals court applied the standards used for older forms of communications, noting that clicking the “like button” leads to a published statement that is “pure speech.” The appeals court declared that there was no constitutional difference between hitting the “like” button and typing a message of support on a computer keyboard, which would be protected speech.

The lesson for employers is that courts take social media, including the simple click of a “like” button, as seriously as any other traditional form of media communication.

Health care employers should keep the court’s opinion in mind when writing or reviewing their social media policies. Any employee rights of speech that are protected under law are similarly protected on social media. For example, the National Labor Relations Act (NLRA) protects the right of workers to discuss wages and working conditions with their fellow workers. An employer’s policy banning employees from saying anything negative about the company would be overly broad and therefore violate the NLRA.

While employers should avoid overly broad social media policies, they should extend their policies and the consequences of legally prohibited behavior to social media. For example, an employer may include a policy stating that discriminatory remarks based on age, sex, religion or race will not be tolerated in discussion in the workplace or in any public forum, including on social media. Health care employers should also make sure that their social media policies prohibit the posting of any photos, videos, names or any other information that may identify patients to ensure compliance under the Health Insurance Portability and Accountability Act (HIPAA).

As the courts increasingly defend employees’ use of social media for protected speech, health care employers must walk a very thin line when disciplining any employee for a comment or action on social media. As a general rule, employers should ask whether the same comment or action made on the Internet would be protected if it were made in a more traditional form of communication before taking any punitive action against an employee.

Beth Slagle is an attorney at Pittsburgh-based law firm Meyer, Unkovic & Scott. She can be reached at bas@muslaw.com.