Facebook ‘Like’ is Speech Protected by First Amendment
The 4th U.S. Circuit Court of Appeals ruled on Sept. 23 that clicking “like” on Facebook can be protected speech for First Amendment purposes, reversing a lower court that had found in favor of a Virginia sheriff who was sued for retaliation when he fired several employees who had “liked” his opponent in an election.
Like This, Like That
A federal trial court in Virginia had ruled in 2012 that the employees’ suit for employment discrimination against Sheriff B. J. Roberts should be dismissed because a Facebook “like” didn’t count as speech.
No actual “statement” was made my clicking the like button, said the lower court, and thus, the First Amendment didn’t protect that action; Sheriff Roberts was free to not rehire the two civilians and four uniformed deputy sheriffs, based on their having expressed a preference — via the Facebook “like” — for Roberts’ opponent Jim Adams in the November 2009 election.
The 4th Circuit heard oral arguments in May. In its ruling, it said Daniel Carter, a former jailer in Hampton, Va., was the only employee of the group to raise the Facebook “like” issue. His claims and two others who raised political allegiance arguments, could proceed, said the 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,” said the court. Carter was indicating he approved of a political candidate’s page; the fact that he clicked one button to show that instead of typing that message out “is of no constitutional significance” — it’s the same thing.
“In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech,” the court said of the Facebook “like” at issue here.
While the sheriff won’t be on the hook to pay any money damages (due to the qualified immunity doctrine that protects most public employees from individual liability), Carter and his colleagues could be reinstated. One judge dissented, saying he thought Roberts was not entitled to qualified immunity. The case now goes back for trial.
Public Employees Protected
The appellate ruling is important for several reasons.
First, it addresses the confusion in the lower court. “I do not think it really breaks any new ground but it does clear up an exceptionally troubling trial court ruling,” lawyer Curt Varone of the Fire Law Blog, who wrote about the case, tells Lawyers.com.
The trial court ruling was troubling, he explains, because it was “exceptionally conservative and anti-public employee.” The First Amendment prohibits public employers from retaliating against employees who engage in protected political speech, and it’s fairly clear that that’s what Carter and his colleagues were doing.
“Political speech is more likely to be found to be a matter of public concern,” says Varone, which qualifies it for First Amendment protection — but the lower court had refused to even acknowledge that the “like” was speech in the first place.
The opinion is also important because it addresses an area of the law that is rapidly growing and changing — free speech on social media channels — which many courts have struggled with.
The 4th Circuit essentially said, “here we have a sophisticated technology and we need to consider how it works and what it does to see if it constitutes speech,” explains Dan Sachs, a fellow at ZwillGen in Washington, D.C. “It’s not unprotected simply because it doesn’t look like what we’ve traditionally thought of as speech or expressive conduct.”
“Social media is making it increasingly easier for people to communicate and share with others,” Sachs says. “This ruling says that, just because sharing is easy — even as easy as one click — doesn’t mean it’s not protected.”
Finally, the court said not only does the Facebook “like” qualify as speech; it also counts as “symbolic expression” — another category of protected expression under the First Amendment.
“The Supreme Court has explained that symbolic speech requires intent to convey a particular message that, given the context, will likely be understood by its audience,” Sachs explains. “Symbolic speech is subject to different standards than pure speech — for instance, the government can restrict symbolic speech based on its non-expressive components, like burning a draft card.”
But in this case, because the court extended its analysis to symbolic as well as pure speech, even if a statement such as “Daniel Carter likes Jim Adams” didn’t appear with the “like” in the Facebook newsfeed, clicking the button and causing some kind of symbol of approval to appear could still be protected, Sachs indicates.