Giving It a “Thumbs Up”: The Fourth Circuit Court of Appeals Provides First Amendment Protection to “Liking” Something on Facebook

September 26, 2013

Thursday, September 26, 2013, by Kelly Morris
Last week, the Fourth Circuit Court of Appeals announced that “liking” a page on Facebook constitutes an expression of free speech and is entitled to constitutional protection.
The case, Bland v. Roberts, arose out of an employment dispute. In 2009, Sheriff B.J. Roberts was up for reelection in the City of Hampton, Virginia. Six Sheriff’s Office employees, not loving the idea of Roberts continuing as Sheriff, expressed their support for his opponent. Some did so by liking and commenting on the opponent’s Facebook page. When the Sheriff was reelected, the plaintiffs were fired. They argued that they had been fired for expressing their political opinions and that accordingly, the terminations violated their First Amendment rights to freedom of speech and of association.

The Court characterized this expression as the “Internet equivalent of displaying a political sign in one’s front yard,” which the Supreme Court has already protected as free speech.

In April of 2012, the U.S. District Court of Eastern Virginia dismissed the case, holding that a “like” was not an “actual statement” and therefore was “insufficient to merit constitutional protection.” The Court of Appeals overturned this decision. Previous court decisions have already ruled that other social media posts are protected as free speech, and U.S. Circuit Judge William Traxler extending this protection to clicking “like,” explaining that “us[ing] a single mouse click to produce [a] message that [a person] likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.” Aside from qualifying as pure speech, giving the virtual “thumbs up” is also a symbolic expression. The Court characterized this expression as the “Internet equivalent of displaying a political sign in one’s front yard,” which the Supreme Court has already protected as free speech.
In its decision, the Court described the substantive effect of clicking the “like” button on Jim Adams’s campaign page: one simple click published Campaign Page’s name and photo to the clicker’s profile; the click caused an announcement that the plaintiff liked the Page to appear in his connections’ news feeds and; it caused the plaintiff’s name and profile to be added to the Page’s “People [Who] Like This” list. Clicking the “like” button literally publishes, in multiple forms and locations, that the user likes or approves of something, “which is itself a substantive statement.”
The Facebook like button is used on over 125 million websites (about one in five websites) around the world, effectively providing the opportunity to make a statement of preference almost any time we surf the web. Over 500 million active people use Facebook every day, and in an average day, Facebook pages get over 50 million likes. The Fourth Circuit’s decision gives constitutional protection to each and every one of these likes.
Facebook got involved in this decision, supporting the fired employees by filing a friend-of-the-court brief. In a statement following the decision, Associate General Counsel Pankaj Venugopal said, “We are pleased the court recognized that a Facebook ‘like’ is protected by the First Amendment.” Facebook may soon find itself again defending the “like” button feature, as it is currently being sued by a patent-holding company that claims Facebook ripped off its technology.