The Lawletter Vol 37 No 1
In the last few years, the phrase "social media" has come into vogue as referring to Facebook, Twitter, MySpace, and the like. Whereas technological advances are marching forward at a blistering pace, the law often lags behind as if connected to the Internet by a dial-up modem. Yet when the two finally meet, and they inevitably do, it is interesting to see how long-established legal principles are applied to new situations that were simply inconceivable just several years earlier.
For example, in Bland v. Roberts, No. 4:11CV45, 2012 WL 1428198 (E.D. Va. Apr. 24, 2012), several employees in the Sheriff's Office for the City of Hampton, Virginia, brought suit against the Sheriff pursuant to 42 U.S.C. § 1983, alleging that they had been fired in violation of their First Amendment rights. In short, the plaintiffs alleged that the Sheriff had used his authority of office to bolster his reelection efforts and that, after winning reelection, and allegedly with the knowledge that the plaintiffs had supported his opponent, the Sheriff terminated the plaintiffs' employment. In relevant part, the plaintiffs alleged that the Sheriff had known of their support for his opponent because of "statements" they allegedly made on the Sheriff's opponent's Facebook page. The Sheriff responded to the charges with facially legitimate reasons for the plaintiffs' terminations and moved for summary judgment.
In relevant part, the district court held that the plaintiffs' free-speech claims failed because the plaintiffs did not sufficiently allege that they had engaged in constitutionally protected speech. One plaintiff's act of merely "liking" the Sheriff's opponent's Facebook page, without his having made any actual statements thereon, was insufficient speech to merit constitutional protection. "In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record." Id. at *3 (citing Mattingly v. Milligan, No. 4:11CV00215, 2011 WL 5184283 (E.D. Ark. Nov. 1, 2011); Gresham v. City of Atlanta, No. 1:10-CV-1301-RWS-ECS, 2011 WL 4601022 (N.D. Ga. Aug. 29, 2011)). Another plaintiff alleged that he had not only "liked" the opponent's Facebook page but had affirmatively posted a message thereon. Although this allegation did not suffer from the same defect as the first plaintiff's, it failed for yet another reason: The content of his Facebook message could not be substantiated because the plaintiff had already removed the statement from Facebook, and the court refused to speculate as to the content of the alleged statement.
In the alternative, the district court held that even assuming that the Sheriff had violated the plaintiffs' constitutional rights, the Sheriff was nevertheless entitled to qualified immunity because "those rights were not clearly established in the context of this case." Id. at *7. "The very broad proposition that employees cannot be fired for their political opposition does exist. However, given the knowledge which an objective Sheriff would have had at the time, coupled with the lack of clarity under which courts have decided these issues, the Plaintiffs' rights cannot be said to be clearly established." Id. at *8.
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