Jeffrey N. Rosenthal
Does the First Amendment protect what you "like" on Facebook? Obviously, Facebook, with its vested interest in shielding all forms of user expression, would argue it does. But now it is not alone in that belief. In August 2012, the social media giant teamed up with the American Civil Liberties Union to oppose a Virginia district court's decision that merely clicking the "like" button is insufficient speech to merit constitutional protection.
Facebook is certainly hoping it will like what the U.S. Court of Appeals for the Fourth Circuit has to say on the matter.
BIG THINGS CAN HAVE SMALL BEGINNINGS
The case of Bland v. Roberts, 857 F. Supp. 2d 599 (E.D. Vir. 2012), started off simply enough.
In the summer of 2009, longtime Hampton, Va., Sheriff B.J. Roberts was running for re-election in Virginia. Yet, some of his employees chose to back his opponent, Jim Adams. This included the online support of Adams' Facebook page by two employees (Daniel Ray Carter Jr. and Robert W. McCoy) and one employee (Carter) "liking" said page.
According to court papers, when Roberts found out, he became "incensed" — telling his staff he would be sheriff "as long as I want it."
A month after Roberts was re-elected, he fired six employees who had either supported Adams or had not actively campaigned for him — including Carter. The employee-plaintiffs filed suit in the U.S. District Court for the Eastern District of Virginia, alleging the firing violated their First Amendment rights to freedom of speech and association. Roberts said the firings were based on unsatisfactory work performance and the disruption the campaigning had caused.
In April 2012, Judge Raymond A. Jackson ruled that the plaintiffs' rights were not violated — and, thus, the attendant terminations were within the bounds of constitutional law — because there are no words associated with clicking the "like" button on Facebook.
"Simply liking a Facebook page is insufficient," Jackson wrote. "It is not the kind of substantive statement that has previously warranted constitutional protection. The court will not attempt to infer the actual content of Carter's posts from one click of a button on Adams' Facebook page."
The plaintiffs quickly filed an appeal to the Fourth Circuit in May 2012.
FACEBOOK AND THE ACLU WEIGH IN
Just three months after filing their appeal, the plaintiffs gained two powerful allies in their fight to overturn the district court: Facebook and the ACLU. Although each filed separate amicus briefs to the Fourth Circuit, the overall message was the same: Liking a Facebook page (or other website) is core speech, and is unquestionably worthy of constitutional protection.
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