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Facebook “Like” Deemed Protected Free Speech

In recent months, our newsletter has focused on the potential impact and uses of social media in civil litigation. On September 18, 2013, the Fourth Circuit Court of Appeals issued an important decision in a case that was specifically about social media. In Bland v. Roberts, the Fourth Circuit held that a Facebook “like” constitutes protected free speech and symbolic expression under the First Amendment. — F.3d —-, CIV.A. No. 12-1671, 2013 WL 5228033, (4th Cir. September 18, 2013).

The case arose from the termination of several sheriffs’ deputies by the Hampton, Virginia sheriff. The deputies alleged that the sheriff terminated them for supporting his opponent during the sheriff’s 2009 re-election campaign. They sued the sheriff under Section 1983 of the Civil Rights Act, accusing him of (among other things) “violat[ing] their First Amendment right to free speech when he refused to reappoint them because of various instances of speech they made in support of [his opponent’s] campaign.”   Those instances included “liking” the opponent’s Facebook campaign page.

The trial court granted summary judgment for the sheriff on the free speech claims, holding that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” The Fourth Circuit overruled, holding as follows:

Once one understands the nature of what [the deputy] did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. 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.

. . .

In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.

2013 WL 5228033, at *15-16. For a complete copy of the Fourth Circuit’s opinion, click here.


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