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Fourth Circuit Holds That Facebook “Like” Is Protected by the First Amendment

Posted in Practice & Procedure, Social Media

Remember that Facebook photo of a friend’s vacation that you “liked” a couple of days ago?  Well, congratulations, you’ve just exercised your constitutional right to free speech!  This week, in an intensely followed case in the Fourth Circuit, the court held that “liking” something on Facebook is “a form of speech protected by the First Amendment.”

In Bland v. Roberts, No. 12-1671 (4th Cir. Sept. 18, 2013) , the former deputy sherrif of Hampton Virginia alleged he was fired because he had “liked” the Facebook page of  a man opposing his boss in the race for sherrif of the city.  Last year, a federal district court held that this was “insufficient speech to merit constitutional protection.”  The district court found that, although First Amendement protection might apply to Facebook posts, such posts are actual statements in a way a “like” is not.

However, the Fourth Circuit disagreed, holding that liking the campaign page was the“Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”  According to Judge William B. Traxler Jr, who wrote for the unanimous Court, “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.”  Representatives for the ACLU expressed support for the ruling, stating, ““The Constitution doesn’t distinguish between ‘liking’ a candidate on Facebook and supporting him in a town meeting or public rally.”

The Fourth Circuit also revived claims of the former deputy sherrif, but noted, however, that even if the Sherrif were to lose the lawsuit, he would not be required to pay monetary damages, as he was entitled to qualified immunity under the 11th amendment.

Employers ought to take note of the court’s ruling, as it could signal a trend toward increased First Amendment protection of social media actions.  Although at first glance the case may not appear to mean much to private employers, some legal commentators are predicting that the Court’s ruling “may foreshadow a decision by the National Labor Relations Board that workers’ ‘likes’ can be protected under federal labor law.”  While the NLRB has not issued a ruling yet, such a ruling may not be a surprise considering its rulings regarding social media policies, which we have previously blogged about.  Furthermore, in certain states, such as Connecticut, where a statute prohibits employers from disciplining an employee based on his or her exercise of First Amendment rights, the court’s ruling suggests that even private employees (at least in the Fourth Circuit) cannot be fired for “liking” a page that an employer does not agree with.

 We will continue to keep you posted on this emerging issue.