Facebook ‘Likes’ protected by US Constitution

Clicking ‘Like’ on Facebook is free speech protected by the US constitution, according to a federal appeals court.

The 4th US Circuit Court of Appeals in Richmond reversed a lower-court ruling that said “liking” a Facebook page was insufficient speech to merit constitutional protection.

The issue came to light in a case involving six people who alleged Hampton Sheriff B.J. Roberts sacked them for supporting an opponent in his 2009 re-election bid, which he won. The employees sued, saying their First Amendment free speech protections were violated.

Sheriff Roberts said some of the workers were let go because he wanted to replace them with sworn deputies while others were fired because of poor performance or his belief that their actions “hindered the harmony and efficiency of the office.” One of those workers, Daniel Ray Carter, had “liked” the Facebook page of Sheriff Roberts’ opponent, Jim Adams.

US District Judge Raymond Jackson in Norfolk ruled in April 2012 that while public employees are allowed to speak as citizens on matters of public concern, clicking the “like” button does not amount to expressive speech. In other words, it’s not the same as actually writing out a message and posting it on the site.

Judge Jackson acknowledged that other courts have ruled that Facebook posts are constitutionally protected speech, but he said in those cases there were “actual statements.”

Simply clicking a button is much different and does not warrant First Amendment protection, he wrote. In his ruling, he acknowledged the need to weigh whether the employee’s speech was a substantial factor in being fired. But the judge wrote that the point is moot if “liking” something is not constitutionally protected speech.

The three-judge appeals court panel disagreed, ruling that “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. 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 case was sent back to the lower court.

Facebook and the American Civil Liberties Union, which filed friend of court briefs in the case, applauded the ruling on Wednesday.

“This ruling rightly recognises that the First Amendment protects free speech regardless of the venue, whether a sentiment is expressed in the physical world or online,” Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy & Technology Project, said. “The Constitution doesn’t distinguish between ‘liking’ a candidate on Facebook and supporting him in a town meeting or public rally.”