Social media deployment within companies may be expanding quickly, but it's taking the law some time to catch up. Over the last few weeks, two cases have highlighted the complexity of Facebook “likes” and sent contradictory, somewhat unsettling messages to corporate marketers and employees.
In the first, a Library of Congress employee filed a complaint with his employer's Equal Employment Opportunity Complaints office, claiming he was fired after his supervisor found that he had “liked” the Two Dads Facebook page, a site about same-sex couples as parents.
According to the complaint, after employee Peter TerVeer “liked” the page, his formerly positive employment evaluations turned negative, his supervisor pressed a religious anti-gay agenda on him and he was finally fired. A response is expected this month.
In the second instance (Bland v. Roberts), six plaintiffs claimed they were fired after their employer, a local sheriff, learned they “liked” the Facebook page of his political rival. After the sheriff won re-election, he fired the employees.
The case, heard in the U.S. District Court for the Eastern District of Virginia, found in favor of the sheriff. The judge said the firing was warranted because Facebook “liking” does not rise to the level of free speech and therefore is not protected under the First Amendment.
Together, these cases represent a new front in the tug of war between employers, employee privacy and social media. The line between social media and corporate communications is blurring as some companies ask employees to promote corporate communications on their private social media accounts.
According to Arthur Bright, an analyst at the Citizen Media Law Project (CMLP), these cases are “an issue of first impression” because there is no case law governing how social media and free speech intersect.
“There are no cases involving constitutional protections for "likes,' "pokes,' "+1s' or any of those other one-click denotations of approval,” Bright wrote on CMLP's blog. “I'm sure [the judge] is a wise man, but I think he whiffed on this one.”
According to Randy Enochs, principal of Glendale, Wis.-based Enochs Law Firm, even though there is no precedent for “liking,” there are plenty of cases involving nonverbal speech that are constitutionally protected, such as wearing an armband or religious symbols.
“But this is a matter of attorneys having to educate the judges,” Enochs said. “I think some of the judges don't really get social media. They don't have Facebook pages themselves.”
Ultimately, Enochs believes that all social media activity will be determined to be protected speech.
However, according to Michael Schmidt, a partner at Philadelphia-based law firm Cozen O'Connor, there are significant obstacles to giving Facebook “likes” full protection.
“One area that will be tested is whether "liking' reflects substantive speech,” Schmidt said. “Another area is whether "liking' constitutes a positive reference. I think it will be difficult to prove that simply "liking' without any other action has substantive meaning.”
Ultimately, both lawyers advised caution when it comes to mixing company business and personal social media accounts, both for the companies' and employees' protection.
“My position is that employers should stay out of it,” Enochs said. “Managers shouldn't be friends with employees, and employees shouldn't be friends with other employees.”
Enochs also cautioned about applying the results of any decisions in these recent cases to private companies, which aren't obligated to offer the same First Amendment protection to employees as public employers such as the Library of Congress.