Two Circuits Address The First Amendment Status Of Facebook Activity

Two recent U.S. appellate court decisions have clarified the extent to which the First Amendment protects the social media activities of government employees.  In Gresham v. City of Atlanta, the Court of Appeals for the Eleventh Circuit found that an individual's First Amendment interest in posting to Facebook is reduced when he or she configures such post to be private, while in Bland v. Roberts, the Court of Appeals for the Fourth Circuit held that Facebook "likes" constitute protected speech under the First Amendment.  Although both decisions deal with the rights of government employees in particular, the decisions have relevance beyond government employees.

U.S. courts have long held that the government has a greater interest in restricting the speech of its employees than it does in restricting the speech of the citizenry in general.  However, the government's ability to restrict the speech of its employees is limited by a test the U.S. Supreme Court outlined