Reporter Michael Doyle describes some disturbing actions by a few public employers:
“Like” the First Amendment? Then prepare for a fight, as courts and employers figure out whether a simple click on Facebook deserves free speech protection.
It’s 21st-century technology meets an 18th-century Constitution, and the real-world implications are starting to erupt.
In rural Mississippi, two firefighters and a police officer are serving 30-day suspensions because they hit “like” on a controversial Facebook post.
In Virginia, a sheriff’s department employee said he was fired for “liking” a page sponsored by the sheriff’s political rival. One federal appellate court already is being asked to weigh in; others surely will follow.
“As we continue to develop new media and new means of expression, it is important to ensure that they are constitutionally protected,” Rebecca Glenberg, a lawyer with the American Civil Liberties Union of Virginia, said in an interview.
When users click “like” on a Facebook post, their names are displayed next to the post. They’re also visible to other users.
The Virginia-based 4th U.S. Circuit Court of Appeals is considering the case of Hampton, Va., sheriff’s department employees allegedly fired for using Facebook and other means to back their boss’s rival. One employee communicated the support by clicking “like.” Another wrote a Facebook post.
A trial judge concluded last April that “merely ’liking’ a Facebook page is insufficient speech to merit constitutional protection.” He said it wasn’t the kind of “substantive statement” that courts traditionally have protected.
The subsequent appeal is the first to consider whether a Facebook “like” falls under the First Amendment, Glenberg said.
Underscoring the case’s importance, the ACLU and Facebook have filed separate friend-of-the-court briefs urging free speech protections.
“I am not aware of any other instances of an employee being fired for ’liking’ something,” Glenberg said. “There is, however, a trend toward employers monitoring employees’ social media use, so the potential for this sort of thing is certainly there.”
All of the examples in this story are of public employers — fire departments, law enforcement agencies, etc. There is no mention of private businesses taking these sorts of drastic actions. Still, it raises some serious questions about the rights of employers versus those of employees. If an employer has the right to discipline an employee for actions taken (or not taken,) it follows that the employer enjoys a certain amount of control over that employee.
Should that control extend to what an employee does on Facebook or other social media? Does the answer change, depending on the type of employer and type of job? Does the answer change, depending on the nature of the employee’s action? Consider these hypotheticals:
- An employee of Joe’s Pizzeria clicks the “like” button on the Facebook page of Mike’s Pizza & Knee-Buckling Wings. Mike’s is one Joe’s major competitors.
- The employee of Joe’s leaves a comment on Mike’s Facebook page, saying, “Have you tried the new butterscotch-flavored wings at Mike’s? They may be the greatest invention since Bud Light.”
- The employee of Joe’s tweets, “Grabbing a pizza at Mike’s as soon as I get off work.”
- The employee of Joe’s leaves a one-star review of Joe’s on Yelp.
Should Joe’s Pizzeria have the right to discipline its employee for any or all of these actions? Conversely, what if Joe’s has a Facebook page and the employee refuses to “like” it? Should Joe’s be able to discipline its employee for that?
These are difficult questions that will only become more frequent. Employers have a right to expect a certain amount of loyalty from their employees, but does that right have an ending point? If so, where is that point?
We live in a time where employers have a great deal of power in the employment relationship. The U.S. economy has not yet recovered all of the jobs lost during the recession that began in late 2007. Private-sector unions have been in retreat for years. Anecdotes about abusive employment practices enjoy a large and sympathetic audience, which is why the media loves to run them. Rightly or wrongly, these stories plant the impression that those fortunate enough to have jobs have the deck stacked against them.
In this context, the issue of employer control over employees’ private actions is magnified. It might seem less important if the unemployment rate was four percent instead of eight (the key word there being seem.) No one had ever heard of social media in the late 1990’s, which was the last time the unemployment rate was that low. It’s a whole new world today.
I don’t pretend to know the answers to the questions I’ve just posed. As an employee myself, I have an emotional reaction to the stories cited in the story I quoted, but that doesn’t mean that employers don’t have a valid point. As a society, we are going to be having this conversation for a very long time — on blogs, in the courts, and in the halls of our legislatures. It is likely to be a messy one. Place your tray tables in the upright position and fasten your seatbelts, because there will be some turbulence.
I’d love to hear your thoughts on this. Sound off in the comments section. Just please keep the discussion civil and polite. Much obliged.