Interesting pair of recent decisions involving Facebook

Both cases involve Facebook and adverse employment actions, but the similarity mostly ends there: one is a First Amendment issue, the other a Stored Communications Act issue. However, both are intriguing to those interested in internet law, so I decided to flag them here.

 

The more publicized of these cases involved a deputy sheriff who did not receive a renewal of his employment contract after “liking” the Facebook page of an unsuccessful candidate for city sheriff. In Bland v. Roberts, the Fourth Circuit overturned a lower court’s dismissal of the First Amendment lawsuit. In rejecting the proposition that “liking” a Facebook page is too insignificant a piece of speech to merit First Amendment protection, the Fourth Circuit reasoned that a Facebook “like” expresses an opinion of approval toward the “liked” content. Accordingly, that expression is a substantive statement warranting protection under the First Amendment. Eugene Volokh analyzed the issue in more depth following the original district court decision here.

 

The plaintiff in the second case, Ehling v. Monmouth-Ocean Hospital Service, was a nurse who received a suspension after authoring a post on Facebook that criticized paramedics in another city for their response to a museum shooting. The plaintiff had previously configured her privacy settings to allow only those with whom she was “friends” on Facebook to view her posts, thereby preventing her managers from viewing them. She was, however, friends with some coworkers, one of whom took screencaptures of the plaintiff’s post and showed it to a manager. The manager then suspended the plaintiff on the basis of that post.

 

The U.S. District Court for the District of New Jersey held that the post was protected by the Stored Communications Act as (among other things) a “private” communication because the plaintiff’s privacy settings meant that the post was not accessible to the general public. However, the coworker’s disclosure of the post to the manager fell under an exception to the Stored Communications Act because the coworker was authorized to view the post, and was not coerced into disclosing it. H/t to Hunton & Williams Privacy and Information Security Law Blog for the second case.

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