Freedom to “Like”: Fourth Circuit Finds Facebook “Likes” are Protected Speech

Facebook-Like-ButtonBy Peter Montine

The Fourth Circuit Court of Appeals found this past September that using the “like” feature on Facebook is a form of protected speech that is guarded by the First Amendment. While running for reelection in 2009, the sheriff of Hampton, Virginia expected his employees to give him political support. He also told them that people who showed support for his opponent would not be reappointed to their positions and specifically warned his employees not to support his opponent on Facebook.

After the sheriff was reelected, eleven of his employees were not reappointed to their old jobs. Six of these employees claimed they were let go because they did not provide adequate political support for the sheriff during his reelection campaign; two of those six had even shown their support for the sheriff’s opponent on Facebook, despite the sheriff’s warnings. One of these employees had “liked” the opponent’s campaign page and wrote an encouraging message on the page. The other just posted a message on the campaign page showing his support for his boss’s opponent. When they were not rehired, the six employees brought suit against the sheriff for wrongful termination.

In part of its decision, the District Court for the Eastern District of Virginia looked at whether this Facebook activity, and specifically the use of the “like” feature, was protected speech under the First Amendment. The District Court found that “liking” a page was not constitutionally protected speech and distinguished it from other previously protected Facebook activities that constituted “actual statements.”

The Fourth Circuit, however, found this analysis unconvincing. The court dug deeper into what a “like” actually represents and decided that this type of speech should be protected by the First Amendment. For example, “liking” a page puts a link to that page on the user’s profile page (their main presence on Facebook). It also announces to that user’s friends that the user has “liked” that page, and adds that user’s name to a list on the page called “People [Who] Like This.”

The Fourth Circuit declined to adopt the District Court’s distinction but instead looked at the user’s intent and the effects of “liking” a page. The Fourth Circuit found that using the “like” feature was both pure speech and symbolic expression, calling it “the Internet equivalent of displaying a political sign in one’s front yard.” The Facebook user’s “like” showed his open support for the sheriff’s opponent and thereby was received in the same way as a political sign in the front yard.

This decision shows a court’s willingness to delve into the implications of actions on the Internet. Facebook “likes” may not appear to be the kind of expression protected by the First Amendment, but by taking the time to analyze the motivation and effects of this action, the Fourth Circuit came to the conclusion that this sort of expression should be protected.

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