United States: Two Circuits Address The First Amendment Status Of Facebook Activity

Two recent U.S. appellate court decisions have clarified the extent to which the First Amendment protects the social media activities of government employees.  In Gresham v. City of Atlanta, the Court of Appeals for the Eleventh Circuit found that an individual's First Amendment interest in posting to Facebook is reduced when he or she configures such post to be private, while in Bland v. Roberts, the Court of Appeals for the Fourth Circuit held that Facebook "likes" constitute protected speech under the First Amendment.  Although both decisions deal with the rights of government employees in particular, the decisions have relevance beyond government employees.

U.S. courts have long held that the government has a greater interest in restricting the speech of its employees than it does in restricting the speech of the citizenry in general.  However, the government's ability to restrict the speech of its employees is limited by a test the U.S. Supreme Court outlined in Pickering v. Board of Education in 1968.  The test requires that, in order for the employee to maintain a successful First Amendment claim against his or her governmental employer, the employee must, among other things, show that he or she was speaking about a matter of public concern, and that his or her interest in doing so outweighs the government's interest in providing effective and efficient service to the public.

First Amendment protection for "likes": Bland v. Roberts.  In August of 2012, we discussed the decision of a District Court in Virginia that a government employee "liking" a Facebook page was insufficient speech to merit constitutional protection.  Deputies of the Hampton Sheriff's Office alleged that they were terminated because they "liked" the campaign page of a candidate running against their boss, the current sheriff.  While much of the suit dealt with the current sheriff's claim to qualified immunity and whether or not the deputies held policymaking positions which can be staffed based on political allegiances, the court also dismissed the deputies' contention that their termination violated their First Amendment right to speak out on a matter of public concern.  The court held that merely "liking" a page "is not the kind of substantive statement that has previously warranted constitutional protection."  The decision stirred considerable controversy and debate among constitutional scholars and within the social media industry.

On appeal, the Fourth Circuit overturned the lower court's holding that Facebook "likes" are too insubstantial to merit First Amendment protection.  The court held that "liking" a Facebook page is both pure speech and symbolic speech, and is protected by the First Amendment even with respect to government employees.  The court found that the act of "liking" a Facebook page results in publishing a substantive position on a topic.  The court reasons that "liking" a political candidate's campaign page is "the Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech."  As a result, at least within the political context, "likes" enjoy the same strong First Amendment protection that other political speech does.

First Amendment protection for private posts: Gresham v. City of Atlanta.The interplay between social media and the First Amendment was also at issue in the Gresham case.  In Gresham, an Atlanta police officer named Maria Gresham became concerned when a suspect she arrested was taken into a room alone by another officer who turned out to be the suspect's aunt.  The suspect gave some items to his aunt and they may have spoken.  Officer Gresham felt that this constituted an inappropriate interference with her investigation and she aired her concerns by making a Facebook post which was only viewable by her friends.  In Atlanta, departmental rules for the conduct of police officers prohibit publicly criticizing other officers.  The department received a complaint that Gresham's post had violated these rules and opened an investigation.  As a result of that investigation, Gresham was passed over for a promotion.  Gresham sued the city, asserting that the department had retaliated against her for engaging in protected First Amendment speech.

The District Court for the Northern District of Georgia found that Gresham's First Amendment interest in making the post was outweighed by the City of Atlanta's interest in maintaining good relations among its police officers.  In weighing Gresham's First Amendment interest in making the post, the District Court noted that "the ability of the citizenry to expose public corruption is one of the most important interests safeguarded by the First Amendment."  The District Court found that Facebook posts are protected under the First Amendment.  It also found, however, that the officer's decision to configure her Facebook post to be viewable only by her friends made "her interest in making the speech . . . less significant than if she had chosen a more public vehicle."

On appeal, the Court of Appeals for the Eleventh Circuit upheld the District Court's decision and expanded on the District Court's reasoning, observing that "the context of Plaintiff's speech is not one calculated to bring an issue of public concern to the attention of persons with authority to make corrections, nor was its context one of bringing the matter to the attention of the public to prompt public discussion to generate pressure for such changes."  Because her audience was small and poorly situated to act on the information she shared, the officer's "speech interest is not a strong one."  The Court of Appeals agreed with the District Court that the government has a strong interest in maintaining good relations among police officers, and that this interest outweighed Gresham's weak First Amendment interest in making the post.  As a result, the City of Atlanta was found not to have violated Gresham's First Amendment rights by restricting her speech.

The resulting rule for Gresham and her fellow officers may be somewhat counterintuitive: Atlanta police officers are effectively allowed to criticize one another very privately or very publicly, but the officers risk being disciplined if they criticize another officer in a somewhat public forum.  A minor breach of the departmental policy against public criticism is more likely to carry consequences than a major breach is.  That being said, the purpose underlying the Pickering rule is to ensure that crucial information reaches the public; making a post private undermines that purpose, so it reduces the protection the post receives under the Pickering rule.

In any event, with social media becoming more and more integrated into the daily fabric of our lives, one can assume that courts will be struggling with the intersection of free speech rights and social media usage for years to come.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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