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Socially Aware Blog The Law and Business of Social Media

Update: What’s Not to Like?

Posted in Employment Law, Litigation, Privacy

As we reported earlier this year, the Federal District Court for the Eastern District of Virginia held in Bland v. Roberts that merely “liking” a Facebook page is insufficient speech to merit constitutional protection.

In the case, former employees of the Hampton Sheriff’s Office brought a lawsuit against Sheriff B.J. Roberts, in his individual and official capacities, alleging that he violated their First Amendment rights to freedom of speech when he fired them, allegedly for having supported an opposing candidate, Jim Adams, in the local election for Sheriff.  Two of the plaintiffs had done nothing more than “like” Adams’s Facebook page.

Shortly after the district court ruled in favor of the defendants, the plaintiffs filed a notice of appeal.  Now Facebook and the American Civil Liberties Union (ACLU) have filed amicus briefs on behalf of the plaintiffs, arguing that “liking” something on Facebook is speech—or at the very least, expression—under the First Amendment, and thus should be entitled to constitutional protection.

In its amicus brief, Facebook argues that when the plaintiffs clicked the “like” button on Jim Adams’s campaign page, it was “the 21st-century equivalent of a front-yard campaign sign.”  Facebook also notes, as we did in our video interview with LexBlog, that clicking “like” is more than a passive signal of approval because it has real effects on Facebook’s algorithm, including “notices and statements on a Facebook user’s profile page, in his or her friends’ news feeds, and in other places around the site.”

The ACLU amicus brief takes issue with the district court’s ruling that “liking” is not entitled to protection because it involves no actual statements.  In response, the ACLU argues that even if “liking” something is not “pure speech,” courts have long recognized that First Amendment protection is not limited to actual words.  The brief goes on to cite almost a dozen cases where conduct or expression has been held to be protected under the First Amendment.  Further, the ACLU argues, whether someone presses a “like” button to express his thoughts or presses the buttons on a keyboard to write out those words, “the end result is the same:  one is telling the world about one’s personal beliefs, interests, and opinions.  That is exactly what the First Amendment protects, however that information is conveyed.”

This case is a prime example of the courts’ challenge of interpreting traditional legal regimes in dynamic, Internet contexts and one that we will continue to follow as it progresses.