• by Erik Sass , Staff Writer @eriksass1, August 9, 2012

Common sense dictates that it’s probably not a super idea to criticize your boss on social media, but is it protected by the First Amendment if you don’t actually say anything? That’s the issue at the center of a case going to U.S. Court of Appeals for the 4^th Circuit.

According to the Washington Post, Daniel Ray Carter Jr., a sheriff’s deputy in Hampton, VA, was fired after expressing support for a rival candidate for sheriff by clicking “Like” on the candidate’s Facebook page. With help from Facebook and the ACLU, Carter is arguing that his First Amendment rights were violated -- an argument the lower court rejected, on the grounds that clicking “Like” doesn’t involve “actual statements.”

The case has important implications, because a decision to uphold the lower court’s ruling could mean that similar actions, like retweeting, are also not protected by the First Amendment.

Now, I’m no legal scholar, but it seems obvious to me that clicking “Like” is a form of expression, as you’re expressing your support for the entity in question. On that note the Washington Post quoted Rebecca K. Glenberg, legal director of the ACLU of Virginia, who pointed out: “Pressing a ‘like’ button is analogous to other forms of speech, such as putting a button on your shirt with a candidate’s name on it.” And even if it’s not technically a statement, it might also be protected under the First Amendment right to assembly, since it is the (virtual) equivalent of joining in a political rally.

Employees also have wide latitude to air grievances, according to the National Labor Relations Board, which released some guidelines for corporate social media policies earlier this year. Indeed, the main criterion for judging whether a corporate social media policy is inappropriate is whether it “would reasonably be construed to chill the exercise of Section 7 rights” of employees as set forth by the National Labor Relations Act. For example, a corporate social media policy which forbids employees from disclosing any kind of confidential information could be used to prevent the employee from complaining about unsafe or unfair working conditions, in violation of Section 7 rights, which are designed in part to make sure employees have outside recourse for reporting these kinds of issues.

Similarly, prohibitions against “offensive” or “inappropriate” remarks on social media are overbroad because they could be construed by employers as including any kind of criticism of the company’s labor policies. Prohibitions on discussing legal matters run into the same problem, since legal matters could potentially include workplace conditions or employment policies.