Facebook 'Likes' Protected by Freedom of Speech, Court Rules

"Liking" a page on Facebook is protected under the First Amendment's Freedom of Speech clause, the Fourth U.S. Circuit of Appeals ruled Wednesday.

When someone clicks the "like" button on a Facebook page (which is the equivalent of "follow" on Twitter or "+1" on Google Plus), it constitutes "pure speech," the Court ruled. It can also be considered a "symbolic expression" protected under the First Amendment.

The decision overruled a lower court that said a Facebook "like" was "insufficient speech to merit constitutional protection."

"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," Chief Judge William B. Traxler Jr. wrote for a unanimous court. "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."

Traxler quoted at length parts of an amicus curiae, or "friend of the court," brief submitted by the Facebook company to explain what it means to "like" something in Facebook.

The case involved six former employees of the Hampton, Va., sheriff's office who alleged they were fired because they "liked" the campaign page of the person running against their boss. After Sheriff B.J. Roberts won re-election, the six employees were not reinstated in their positions.

The plaintiffs sued on several grounds and only one plaintiff, Daniel Carter, claimed a Freedom of Speech violation.

Traxler compared Carter's actions to that of displaying a political sign in one's yard, which is also protected speech.

"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," he wrote.

Roberts praised the Court for noting that the law is unclear on whether political loyalty can be a condition of employment for the sheriff's office.

"Sheriff Roberts is gratified that the Court agreed that he was entitled to qualified immunity because the law was not clear with regards to whether sheriffs could demand political loyalty from their deputies," Roberts' lawyer, Jeff W. Rosen, said, according to The Wall Street Journal.

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