Facebook Like Now Covered by the First Amendment – Applications for Healthcare

Posted on September 23, 2013 I Written By

John Lynn is the Founder of the HealthcareScene.com blog network which currently consists of 10 blogs containing over 8000 articles with John having written over 4000 of the articles himself. These EMR and Healthcare IT related articles have been viewed over 16 million times. John also manages Healthcare IT Central and Healthcare IT Today, the leading career Health IT job board and blog. John is co-founder of InfluentialNetworks.com and Physia.com. John is highly involved in social media, and in addition to his blogs can also be found on Twitter: @techguy and @ehrandhit and LinkedIn.

A big court case, Bland v. Roberts, has recently ruled that the Facebook Like is now covered by the first amendment. This was an overturn of a previous lower court ruling. Here’s the summary of the case from The Atlantic:

In November of 2009, B.J. Roberts, the sheriff of Hampton, Virginia, ran for re-election. A group of workers in Roberts’ office, however, among them one Bobby Bland, weren’t enthused about the prospects of their boss’s continuation in his role. So they took to their Facebook accounts to protest the run: They Liked the campaign of Roberts’s opponent, Jim Adams. Despite the minuscule mutiny, however, Roberts won the election. He then chose not to retain Bland and the others as his employees. The dismissals, Roberts said at the time, were the result not only of budgeting concerns, but also of the workers’ hindrance of “the harmony and efficiency of the office.” The sheriff had not liked his workers’ Likes.

Bland and his colleagues took Roberts to court, arguing that, in the dismissals, Roberts had violated their First Amendment rights. In April of 2012, however, the U.S. District Court of Eastern Virginia dismissed the case on the grounds that a Like didn’t involve an “actual statement,” and therefore was “insufficient speech to merit constitutional protection.”

Yesterday, however, that decision was overturned. A federal appeals court ruled that a Facebook Like is, indeed, a form of expression that is covered by the First Amendment. Clicking a button is, per the decision, a protected form of speech.

Of course, those reading this must be wondering how this applies to healthcare.

Some of you might remember last month when several Spectrum Health employees were terminated over a picture posted to Facebook. The employee who posted the picture was fired and so was everyone who liked it.

I’m not saying that these cases are the same. Posting a picture that could be considered a violation of HIPAA and could be a violation of an organizations social media policy is different than a police officer liking an opposing Sheriff’s page. However, I wouldn’t want to be Spectrum Health if the employees who liked the Facebook photo brought a wrongful termination lawsuit. There are a lot of intricacies to a case that covers so many areas of the law.

In another international example, 15 nurses were fired from a hospital for liking someone’s comment which was critical of the hospital. Certainly the Philippines has different laws than we have in the US. However, I wouldn’t be surprised to see a similar thing happen in the US. Considering the latest ruling, I’d be really careful if I were a hospital firing someone based on social media.

My favorite thing is when healthcare organizations try and control and restrict social media. As many institutions have learned, that’s impossible to do. Instead, it’s much more effective to educate and inform people on their use of social media. The best reason you should educate and inform as opposed to control and restrict is the message it sends to your employees. The former sends a message of trust and respect while the later does the opposite.