The 4th Circuit is hearing arguments today in the appeal of a case that is set to determine whether a Facebook “like” can be considered free speech.

The like in question came from Daniel Carter, a deputy in Hampton, Va. Sheriff B.J. Roberts’s office. He gave his digital thumbs-up to the “Jim Adams for Hampton Sheriff” page, essentially endorsing his boss’s rival. Roberts fired him.

In August 2012, a Virginia district court found that a Facebook like does not qualify for First Amendment protection and that Carter could not bring a retaliation suit against Roberts for firing him. If the person doesn’t actually say anything, the activity is not free speech, according to the district court.

Lawyers for Carter and Facebook will attempt to refute that at the 4th Circuit today. Facebook claims that Carter’s action was no different than posting a campaign sign in his front yard, an activity that the Supreme Court declared protected in 1994. The company says it has a “vital interest” in protecting speech on its site, and making sure that it “is afforded the same constitutional protection as speech in newspapers, on television and in the town square,” according to a filing.

For his part, Roberts claims that Carter and other employees were fired for performance reasons, not because they supported another candidate for sheriff.

Read more at Bloomberg.


For more InsideCounsel coverage of Facebook, see below:

Ted Ullyot steps down as Facebook GC

The risks and rewards of social media

SEC social media rule reflects growing pressure on regulators

Judge recommends Paul Ceglia’s Facebook ownership claims be thrown out