Your Facebook 'Like' is protected under the First Amendment

Your Facebook 'Like' is protected under the First Amendment

Summary: A U.S. court has shown support for the idea that social media 'likes' and preferences should have the same level of protection as legally protected speech.

TOPICS: Government US, Legal
Facebook Like protected First Amendment
Credit: CNET UK

Showing preferences on Facebook by 'liking' pages and figures should not land you in court, a U.S. judge has ruled, reviving discussions of how much the Constitution protects what we do and say online.

The 4th U.S. Circuit Court of Appeals has ruled in favor of Daniel Carter, former deputy sheriff in Hampton, Virginia. Carter claimed that he was sacked after 'liking' a Facebook page dedicated to a candidate running for city sheriff. The candidate, Jim Adams, was in direct competition with the former employee's boss in 2009.

Six former employees of Hampton Sheriff B.J. Roberts claimed they were fired in violation of their First Amendment rights for showing support to the rival candidate online and brought the original complaint against the public official.

According to Reuters, the appeals court has ruled that Facebook users who click the 'Like' button to show support for a political candidate is no legally different than displaying political signs in a front lawn, and such marked preferences are protected by law.

The chief judge, William Traxler, wrote for the three-judge panel:

"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. It is the Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech."

In 2012, U.S. federal District Judge Raymond Jackson in Virginia called the 'liking' of a Facebook page "insufficient speech to merit constitutional protection," and threw out the original case. While Jackson admitted courts had granted First Amendment protection to written posts and comments on Facebook, as they were "actual statements," there is a distinction between 'likes' and written commentary.

Traxler, however, does not believe such separation exists.

"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," Traxler wrote.

Facebook welcomed the most recent ruling, saying that using the 'Like' button on the social media site was no different than standing on a street corner and expressing support -- once again, protected speech by law. Pankaj Venugopal, associate general counsel at Facebook said in an emailed statement:

"We are pleased the court recognized that a Facebook 'Like' is protected by the First Amendment."

Due to the ruling, three of the six claimants can pursue claims for reinstatement of their claims. Carter was the only one to claim that 'likes' should be protected by the First Amendment, while others persued more general First Amendment claims. While three could regain their old jobs if they revive their complaints, Roberts is protected from paying financial compensation due to legislation that limit claims against public officials.

Facebook 4 Th Circuit by Joe Palazzolo

Topics: Government US, Legal

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  • What's going on?

    Why the pages and pages and ages of the Court Opinion?
    Do you really think that someone is going to read them?
    Maybe a link to the opinion would work?
  • Public employees

    The sheriff is an elected official. It's fine for a deputy or other employee to support a competitor for the sheriff's job, as long as they don't do so on company time, company property, or using company resources.

    Then again, if I'm campaigning to get my boss fired, he may fire me first. That's the way it goes.
    • Public Employees

      There are many jurisdictions in which it is illegal for public employees to engage in political activity (in uniform?). I'm pretty sure that military officers are prohibited from doing so.
  • U.S. federal District Judge Raymond Jackson is an ignoramus

    Speech is communication.
    Saying a "Like" isn't protected speech is the same as saying "I approve this message" has no legal binding.
  • Is it really this simple.

    Putting up political signs in a front lawn is protected, if it is your lawn. You cannot do the same in someone else's lawn and say that it is covered by the First Amendment. So now we come to what on Facebook is yours and what is not yours. You can say "I like XYZ," and make it your profile but if you're clicking on the "Like" button for someone else or for something posted by someone else is it equivalent to the "on your lawn," case.
    • Of course clicking "Like" is protected speech.

      If a candidate makes a post on Facebook, they are inviting any other Facebook clients to perform any legitimate Facebook action on that post, including clicking "Like" on the post. It may not be "your lawn" in the sense that it belongs to you alone, but it is a publically posted item which is open to anyone in the world performing a legitimate Facebook action on it. (An illegitimate Facebook action would be, for example, posting a reply that is defamatory, obscene, or otherwise in violation of Facebook Terms of Service.) Clicking "Like" on a post is equivalent to saying the words "I like this" by passing publically available air through your privately owned lungs, throat, and mouth.