Appeals Court likes “likes,” says they’re speech

The Fourth Circuit Court of Appeals has held that “liking” something on Facebook is speech protected by the First Amendment, reversing a lower court opinion dismissing a suit brought by former employees of a sheriff’s office who lost their jobs after they “liked” the Facebook page of their boss’s opponent in his re-election bid.

Last May, District Judge Raymond A. Jackson held that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” Bland v. Roberts, 857 F. Supp.2d 599 (E.D. Va. Apr. 24, 2012), slip op. at 6, and dismissed the fired employees’ claims.

But after reviewing the nature and consequences of “liking” something on Facebook, the appeals court held that “[o]nce one understands the nature of what [one plaintiff] did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech.” Bland v. Roberts, No. 12-1671 (4th Cir. Sept. 18, 2013), slip op. at 39.

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. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance. slip op. at 39-40.

This makes sense. The courts have held that First Amendment protection extends to gestures, signs, and even some actions (“symbolic speech”). A Facebook “like” is no different; depending on the context, it can be an expression of endorsement, approval, or gladness that something was posted. And I’m sure that it can have other meanings that I’m not thinking of. But the point is that pressing the “like” button can, indeed, carry a message that can and should be protected by the First Amendment.

Unfortunately, the Fourth Circuit doesn’t have an official Facebook page to “like.” (Although there’s a page for former clerks.) But you can go to Justia’s Facebook page for Fourth Circuit opinions and like the Bland v. Roberts decision.

By doing so, you’ll be making an expression of support — and enjoy the protection of the First Amendment for doing so.

Eric P. Robinson is co-director of the Program in Press, Law and Democracy at the Manship School of Mass Communication at Louisiana State University.