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Friday, September 7, 2012

Clicking “Like” on Facebook Not a Protected Form of Speech

A judge for the Eastern District of Virginia ruled against employees who alleged that their employer, an elected sheriff, had fired them in retaliation for exercising their First Amendment right to free speech.  Bland et al. v. Roberts.  The employees who brought the complaint “liked” the Facebook page of an opponent for the elected sheriff position.  The defendant sheriff ultimately won the election, and decided not to retain the employees.  In dismissing the case against the sheriff, the judge held “that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” because it is not a statement at all. The judge pointed out that courts have only found actual statements posted on Facebook to be constitutionally protected, and the court refused to infer content from the mere click of a button.

The employees have appealed the case to the Fourth Circuit Court of Appeals.  Both the ACLU and Facebook, Inc. have filed amicus briefs in support of the employees. In its brief, Facebook asserts that when a Facebook user "likes" a page on Facebook, the user engages in speech protected by the First Amendment. Facebook analogizes the "speech" to traditional campaigning, as follows (citations omitted):

When Carter clicked the Like button on the Facebook Page entitled “Jim Adams for Hampton Sheriff,” the words “Jim Adams for Hampton Sheriff” and a photo of Adams appeared on Carter’s Facebook Profile in a list of Pages Carter had Liked, – the 21st-century equivalent of a front-yard campaign sign. In addition, an announcement that Carter likes the campaign’s Page was shared with Carter’s Friends, and Carter’s name and photo appeared on the campaign’s Page in a list of people who Liked the Page. If Carter had stood on a street corner and announced, “I like Jim Adams for Hampton Sheriff,” there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection.

This case is one worth watching.

Post Authored by Julie Tappendorf, with assistance from Sara Smith


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