Appeals Court Says Facebook 'Likes' Are Protected Speech
In the Internet arena, "liking" a Facebook page is protected speech that's equivalent to sticking a political campaign sign in your front yard, a federal appeals court in Virginia said Wednesday in a closely watched First Amendment retaliation case.
A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit overturned a trial judge who concluded that the act of "liking" a Facebook page does not come with constitutional protection. The appeals court revived certain claims in a suit against a Virginia sheriff who didn't reappoint a group of employees who supported a rival candidate for office.
"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," Chief Judge William Traxler Jr. wrote in the Fourth Circuit ruling. "Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression."
Aaron Panner, a lawyer for Facebook at Kellogg Huber Hansen Todd Evans & Figel,, has argued that "speech on Facebook and in other online communities is afforded the same constitutional protection as speech in newspapers, on television and in the town square." Panner was allowed to present his argument in court in May when the Fourth Circuit heard the dispute.
In the appeal, six former employees of the Hampton County, Va., Sheriff's Office challenged a ruling by U.S. District Judge Raymond Jackson in Newport News, Va. Last year, Jackson concluded that a Facebook "like" isn't "the kind of substantive statement that previously warranted constitutional protection." The judge ruled in favor of Sheriff B.J. Roberts.
Roberts, the appeals court said, had served for 17 years; he was facing re-election in 2009 when the events that gave rise to the suit unfolded. Four the plaintiffs were sworn deputies who worked in the agency's corrections division. The two other plaintiffs served in non-sworn administrative posts. The plaintiffs said that Roberts—after winning re-election—retaliated against them for their support of his opponent.
The appeals court concluded that three of the plaintiffs—Daniel Carter, Robert McCoy and David Dixon—should be allowed to proceed in the trial court with their argument that their lack of political allegiance to the sheriff "was a substantial basis for their non-reappointment." (The Fourth Circuit panel said the evidence "is simply too thin to create a genuine factual dispute" regarding whether another plaintiff’s lack of political allegiance was the foundation for the fact he was not reappointed.)
Carter's "like" of the Facebook page of Roberts' opponent did not "disrupt the office" and did not make it more difficult for the sheriff to efficiently perform his service, the Fourth Circuit panel said, rejecting the argument by the sheriff.
"Carter's interest in expressing support for his favored candidate outweighed the Sheriff’s interest in providing effective and efficient services to the public," Traxler wrote. "Carter’s speech was political speech, which is entitled to the highest level of protection."
Facebook's lawyer in the appeal, Panner, had no immediate comment on the ruling.
The Fourth Circuit divided over whether Roberts is entitled to qualified immunity. Traxler, joined by Judge Stephanie Thacker, said qualified immunity protects Roberts against claims for money damages. However, the appeals court said, Roberts enjoys no such protection when it comes to the remedy of reinstatement. That issue will play out once the case is back in the trial court.
U.S. District Judge Ellen Lipton Hollander in Maryland, sitting by designation, disagreed with the majority's take on qualified immunity. (Hollander joined the panel in its analysis of the First Amendment element of the case.)
"In my view, when these deputies were discharged in December 2009, the law was clearly established that a sheriff’s deputy with the job duties of a jailer could not be fired on the basis of political affiliation," Hollander wrote.