A lawyer for Facebook Inc. will have the opportunity next week to address a federal appeals court in Richmond, Va., in a dispute that touches on the scope of First Amendment rights when it comes to online activity.
The U.S. Court of Appeals for the Fourth Circuit on Monday said Facebook, represented by Kellogg, Huber, Hansen, Todd, Evans & Figel, would have three minutes of oral argument time when a three-judge panel hears the closely watched dispute.
Facebook in August filed a brief in support of a deputy sheriff, Daniel Carter Jr., who claims he was fired after showing support for an opponent’s bid to become the elected sheriff of Hampton, Va. That support included "liking" the challenger’s Facebook page.
After the incumbent sheriff, B.J. Roberts, won the November 2009 election, he did not retain the six plaintiffs—four deputy sheriffs and two civilians. The plaintiffs alleged in a suit in the U.S. District Court for the Eastern District of Virginia that Roberts’ actions violated protected First Amendment speech and association rights.
U.S. District Judge Raymond Jackson in Newport News, Va., ruled for the sheriff in August. Jackson concluded that "simply liking a Facebook page is insufficient" to warrant First Amendment protection. "It is not the kind of substantive statement that previously warranted constitutional protection," he said at the time.
Lawyers for Facebook want the Fourth Circuit to overturn the decision. The social media company’s counsel of record in the case, Kellogg partner Aaron Panner, contends that the First Amendment protects a person who "likes" a Facebook page.
Panner said in court papers in the case that Jackson’s ruling "betrays a misunderstanding of the nature of the communication at issue and disregards settled Supreme Court and Fourth Circuit precedent."
"Liking a Facebook Page (or other website) is core speech: it is a statement that will be viewed by a small group of Facebook Friends or by a vast community of online users," Panner wrote.
More than 3 billion ‘likes’ and comments are posted on Facebook every day, he said.
A person who "likes" a particular page "makes a connection to that content," Facebook argued.
Facebook, Panner said, "has a vital interest in ensuring that speech on Facebook and in other online communities is afforded the same constitutional protection as speech in newspapers, on television, and in the town square."
Lawyers for Roberts, represented by Virginia Beach, Va.’s Pender & Coward, said that at the time the sheriff made the reappointment decision "it was not clearly established that hitting the ‘like’ button on Facebook constituted protected expression."
Mike Scarcella can be contacted at email@example.com.