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Your Facebook “Likes” is speech that gives rise to constitutional protection

The Fourth U.S. Circuit Court of Appeals held that a Facebook “like is a speech protected by the First Amendment.

On appeal from the District Court’s decision ruling for the Defendant’s on Summary Judgment the Plaintiffs allege that after exercising their First Amendment rights to free speech they were retaliated against.

The First Amendment, in relevant part, provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I.

The Fourteenth Amendment makes this prohibition applicable to the states. See Fisher v. King, 232 F.3d 391, 396 (4th Cir. 2000).  Not only does the First Amendment protect freedom of speech, it also protects “the right to be free from retaliation by a public official for the exercise of that right.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000).

The case was initiated after six employees were fired from a sheriff’s office in Hampton, Virginia.  Those employees outwardly expressed their support for the challenger in the 2009 election for sheriff, including “liking” the challenger’s facebook page and writing comments of support on the page.

Once the campaign had concluded and the initial sheriff remained in office, those employees were fired.

Why does this matter?   The Court explained “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.”  The Court went on to compare the action of clicking the “like” on facebook to displaying a political sign in your front yard.

“Liking” on Facebook is a way for Facebook users to share information with each other.  The “like” button, which is represented by a thumbs-up icon, and the word “like” appear next to different types of Facebook content.  Liking something on Facebook “is an easy way to let someone know that you enjoy it.” What does it mean to “Like” something?,   Facebook, http://www.facebook.com/help/452446998120360 (last visited Sept. 17, 2013).

The Court went on to state that “aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression,” and that “the distribution of the universally understood “thumbs up” symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy. citing see Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam) (holding that person engaged in expressive conduct when there was “[a]n intent to convey a particularized message . . ., and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it”); see also Tobey v. Jones, 706 F.3d 379, 388 n.3 (4th Cir. 2013).

In short, the Court found that several of the terminated employees were entitled to pursue claims for reinstatement.

 

Bland v. Roberts (4th Cir., 2013), published order & opinion

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