Facebook "Likes" are Protected Speech
By Kluger Kaplan October 16, 2013
By Steve Silverman
On September 18, the United States Court of Appeals for the Fourth Circuit issued an opinion in Bland v. Roberts which held that Facebook “likes” are in fact protected speech under the First Amendment.
In the case, Roberts, the Sheriff in Hampton, Virginia, fired several employees after they supported his opposition candidate in a 2009 election. Roberts prevailed in his reelection and, plaintiffs claim, he fired those employees who supported his adversary. One of the plaintiffs, Daniel Carter, Jr., claimed that he was terminated for “liking” the Facebook page of Roberts’ adversary.
The Court agreed that a Facebook “like” is protected speech, holding “[o]n 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” and “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.”
This opinion sets a new precedent for how social media is used and perceived in our society. It continues to get harder to distinguish between speech and conduct. While the mere act of clicking “like” on a Facebook page may seem to be so effortless that it should not merit First Amendment protection, the Fourth Circuit’s holding in Roberts may be seen as broadening the scope of protected speech. In this instance, because the “like” dealt with a political candidate, the Court likened it to putting a campaign sign in one’s yard. But how far will this logic be extended? If an employee “likes” a page that is sexist or homophobic is that not protected speech and grounds for termination? It will be interesting to see the cases that follow, and the types of arguments that emerge in light of the holding in Roberts.