Don’t Worry, Your Facebook “Likes” are Protected Free Speech

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By: Matthew Andersen, Web Editor

Facebook users rejoice! The Fourth Circuit Court of Appeals has held that “liking” something on Facebook is now protected as free speech under the First Amendment of the United States Constitution.

In 2009, BJ Roberts was seeking re-election as the Sheriff of the Hampton City Police Department. During his campaign, Mr. Roberts did what any 21st Century member of a political race would do, he checked out his opponent’s Facebook campaign page.  In doing so, he realized that six of his deputies had “liked” his opponent’s page, which he believed was an act of supporting his opponent’s campaign to remove him from office. Subsequently, Mr. Roberts retained his position as Sheriff of the Hampton City Police Department; however, he brought with him a grudge against those six deputies who “supported” his opponent’s campaign. That grudge led him to fire all six deputies, and, as you can imagine, a lawsuit ensued.

Last year, the Eastern District of Virginia Court granted Mr. Roberts’ motion for summary judgment, concluding that plaintiffs “had all failed to allege that they engaged in expressive speech,” and that a Facebook “like” was “insufficient speech to merit constitutional protection.” The plaintiffs appealed to the Fourth Circuit Court of Appeals, and the Fourth Circuit judges had a different opinion on the matter.

The Fourth Circuit reasoned 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.”  This holding follows Facebook’s stance on the issue, which they argued in a preliminary phase of the trial, “if [Deputy] Carter had stood on a street corner and announced, ‘I like Jim Adams for Hampton Sheriff,’ there would be no dispute that his statement was constitutionally protected speech.” Deputy Carter was the only plaintiff to claim that a “like” amounted to protected free speech, the other plaintiffs’ claims dealt with more conventional First Amendment issues.

So there you have it, a Facebook “like” is now protected free speech under the First Amendment of the Constitution.  This certainly not the last time we will see Facebook involved in a First Amendment lawsuit, but, for now, “like” away!

The full opinion from the Fourth Circuit can be viewed below:

Matthew Andersen is the Web Editor for Juris Magazine and a 2L here at Duquesne Law.  Mr. Andersen is currently a Junior Staff Member for the Duquesne Business Law Journal, and a member of the Duquesne Law Appellate Moot Court Board.

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