Are Facebook “Likes” Protected Speech?

Is the simple act of clicking “like” on a Facebook post or page constitutionally protected speech? In a recent opinion, the Fourth Circuit says that “liking” something on Facebook is protected by the First Amendment in an instance where a sheriff’s employee lost his job for liking the sheriff’s election opponent on Facebook. Prior to this decision, the lower court in Virginia had ruled that clicking like was insufficient speech to merit protection because it didn’t amount to “a substantive statement.” This ruling had been criticized by constitutional lawyers, who said that other protected speech on the Internet (like uploading a video or donating money to a campaign) is also accomplished with one click of a button. In the end, the Fourth Circuit disagreed with the lower court. “Liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it,” U.S. Circuit Judge William Traxler wrote. “It has the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

Facebook was apparently thrilled with the ruling as it had been involved in arguments before the appeals panel to make the case that the “Like” feature is vital to the 500 million people who share ideas on their social network and must be have free-speech protection.

The Court did rule that the sheriff was immune from monetary damages under qualified immunity. However, the dismissed employee could possibly get his old job back. A lawyer for the sheriff made an interesting argument to the appeals panel that “liking” a Facebook page can mean many things as people often “like” a page to get a coupon or because they are curious about something that can only be seen by hitting that feature.

The case is Bland v. Roberts, 12-671, U.S. Court of Appeals for the Fourth Circuit.

Sources: http://www.ca4.uscourts.gov/Opinions/Published/121671.P.pdf http://www.bloomberg.com/news/2013-09-18/facebook-like-is-protected-speech-appeals-court-says.html

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