A federal judge’s recent decision to exclude the Facebook “like” from free speech protections means that workers who also use the world’s largest social network should now just assume that “Big employer is watching,” and act accordingly, an author and labor law expert told Raw Story recently.
If upheld, the U.S. District Court for the Eastern District of Virginia’s ruling in Bland vs. Roberts could give employers with an inclination toward employee monitoring a free pass to probe even the finest details of their workers’ online lives and weed out those whose preferences or affiliations they find distasteful. Even in places like Washington D.C., Virginia and New York, where private sector employees are supposedly protected from discrimination on the basis of political activity or affiliation, a “like,” which isn’t classified as protected speech, could get a worker fired.
Thanks to national labor laws, employers in every state are forbidden from discriminating on the basis of race, sex, religion, national origin, disability, pregnancy and age (but not for sexual orientation or gender expression). Some forms of speech, like sharing information about illegal activities or concerted efforts to collectively bargain, are also protected on a federal level — and recent cases have shown that those protections do still hold up, even when Facebook is involved.
But thanks to the recent decision, which is likely to be appealed, some employees could soon find themselves in trouble if they clicked “like” on the Facebook pages of political campaigns that run counter to their employer’s views. In an age where seemingly everyone has a Facebook account and unprecedented volumes of information on peoples’ private lives is readily available, it’s not hard to see how this precedent could lead to some truly Orwellian scenarios.
Attorney Donna Ballman, who specializes in employment law and wrote the book “Stand Up for Yourself Without Getting Fired,” told Raw Story that, in effect, “there is [currently] no free speech in corporate America.”
“Only government employees have free speech protection, and that’s very limited,” she said. “The First Amendment protects us from government action, not the actions of private companies. That means you can be fired because your private employer doesn’t like what you said, with very few exceptions.”
One of those exceptions, embedded in most of the equal opportunity laws across the U.S., is the protection from discrimination on the basis of political affiliation. In the case that set up the Facebook “likes” decision, four government employees were fired for “liking” the campaign of his employer’s rival. The judge ruled that their choice of preference was not protected as a free speech activity essentially because they did not many “actual statements” elaborating on their preference.
“[The defendants] said these ‘likes’ were freedom of speech protected under the First Amendment, but the court ruled that likes do not rise to the level of protected speech,” Aaron I. Messing, an attorney specializing in employment, Internet and privacy law, told Raw Story. “I think this is something that’s ripe for appeal. As we know from legal precedent, free speech doesn’t have to be speech. It can be a black armband. It can be flag burning. It’s hard to imagine what the judge was thinking when he didn’t consider likes to be free speech.”
He added: “[‘Likes’ are] like any other electronic speech. It’s like texting or any other announcement you make on social media. When you ‘like’ a page, it sets off all sorts of chain reactions, showing up in other people’s news feeds, folks are notified, it’s listed on your profile. So, I don’t know if the case will hold up.
“Having said that, the First Amendment does not protect an employee from being monitored, disciplined or terminated for violating a clear and reasonable social media policy… Most employment is at will, and unless you’re engaging in these types of concerted activities that are protected, you really can be fired for anything that you do with social media.”
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