Bobby Bland v. B. Roberts
730 F.3d 368 (2013)
Rule of Law:
A public employee's act of 'liking' a political candidate's campaign page on a social networking site is a form of symbolic speech protected by the First Amendment. While terminating non-policymaking employees for such speech violates their constitutional rights, a public official may be entitled to qualified immunity if the law was not clearly established at the time of the termination.
Facts:
- B.J. Roberts, the Sheriff of Hampton, Virginia for 17 years, was running for re-election in November 2009 against his opponent, Jim Adams.
- During the campaign, Sheriff Roberts used his office and employees to support his re-election, including pressuring them to assist with fundraising events.
- Daniel Carter 'liked' Adams's campaign page on Facebook, and Robert McCoy posted a supportive entry on the same page.
- Carter also co-hosted a cookout which Adams attended, and which Roberts's senior staff viewed as a campaign event.
- Sheriff Roberts held meetings where he warned employees that those who supported Adams would lose their jobs, and he specifically confronted Carter after one such meeting, telling him, 'after the election, you're gone.'
- David Dixon told a poll worker for Roberts's campaign to 'just throw that stuff away' in reference to campaign materials and had an Adams bumper sticker on his car.
- After winning the election, Sheriff Roberts chose not to reappoint the six plaintiffs, among others.
Procedural Posture:
- Six former employees sued Sheriff B.J. Roberts in the U.S. District Court for the Eastern District of Virginia, alleging their non-reappointment violated their First Amendment rights.
- Sheriff Roberts moved for summary judgment.
- The district court granted summary judgment in favor of Sheriff Roberts, finding the employees had not engaged in protected speech and failed to show a causal link for their association claims.
- The district court also ruled that the Sheriff was entitled to qualified immunity and Eleventh Amendment immunity.
- The plaintiffs appealed the grant of summary judgment to the U.S. Court of Appeals for the Fourth Circuit.
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Issue:
Does a public employer's decision not to reappoint employees based on their political speech and association, such as 'liking' a political opponent's Facebook page, violate the employees' First Amendment rights?
Opinions:
Majority - Chief Judge Traxler
Yes, for certain plaintiffs, the sheriff's decision not to reappoint them based on their political speech and association violates the First Amendment. 'Liking' a Facebook page is protected speech because it is the 'Internet equivalent of displaying a political sign in one's front yard' and conveys a substantive message of approval. This speech was on a matter of public concern, and the employees' interest in it outweighed the Sheriff's interest in workplace efficiency, as there was no evidence of disruption and the employees were not in policymaking positions. Under the Elrod-Branti test, political allegiance is not an appropriate requirement for the plaintiffs' jobs as jailers, whose duties were primarily ministerial. While there is a genuine issue of fact that this protected activity caused the non-reappointment of Carter, McCoy, and Dixon, the Sheriff is entitled to qualified immunity from money damages because prior case law sent 'mixed signals' and the law was not clearly established in 2009 that a sheriff could not terminate deputies for political reasons. The claim for reinstatement, however, may proceed as it is not barred by Eleventh Amendment immunity.
Concurring in part and dissenting in part - Judge Hollander
Yes, the non-reappointment violated the plaintiffs' rights, and the Sheriff should not be entitled to qualified immunity. The majority is correct that the Sheriff violated the constitutional rights of Carter, McCoy, and Dixon. However, the law was clearly established in December 2009 that a sheriff could not terminate a deputy with the ministerial duties of a jailer based on political affiliation. The Supreme Court's Elrod-Branti doctrine and this circuit's decisions in Jenkins v. Medford and Knight v. Vernon made clear that the analysis depends on an employee's actual duties, not their title. Knight specifically held that a jailer could not be fired for political reasons, and the Jenkins court explicitly cautioned sheriffs to examine job duties. Any reasonable sheriff would have understood that terminating these employees for their political speech and association was unlawful.
Analysis:
This case is significant for formally recognizing that modern forms of expression on social media, such as 'liking' a page, constitute protected speech under the First Amendment. It solidifies the principle that courts must conduct a fact-specific inquiry into an employee's actual duties, rather than relying on job titles, when determining if political loyalty is a permissible job requirement under the Elrod-Branti doctrine. The majority's granting of qualified immunity, however, demonstrates the high bar plaintiffs face in overcoming this defense, particularly when prior case law contains broad or seemingly conflicting language that a non-lawyer official might reasonably misinterpret. This ruling influences future employment law cases involving political retaliation and online speech.
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