Court Gives Facebook a Thumbs-up, “Likes” Are Now Protected By The First Amendment - Fordham Intellectual Property, Media & Entertainment Law Journal
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Court Gives Facebook a Thumbs-up, “Likes” Are Now Protected By The First Amendment

Court Gives Facebook a Thumbs-up, “Likes” Are Now Protected By The First Amendment

“Like” this blog post on Facebook? Congratulations you’ve just exercised your constitutional right to free speech…at least according to a federal appeals court.

The U.S. Court of Appeals for the Fourth Circuit recently issued its decision in Bland v. Roberts, a case that shocked many last year, when a district court judge ruled that a Facebook “like” did not rise to the level of speech that merits constitutional protection.

In 2009, six employees of the Hampton, Virginia Sheriff’s Office were terminated, allegedly because they openly supported Sheriff B.J. Roberts’ electoral opponent during his reelection campaign.  The former employees sued Roberts, claiming that their dismissals violated their First Amendment rights.  In the suit, one of the employees, Roy Carter Jr., claimed that his protected speech in support for Roberts’ opponent came in the form of his Facebook “like” on the opponents’ page. But the District Court Judge, Raymond Jackson didn’t buy Carters’ reasoning and dismissed the case.  According to Jackson, clicking the “like” button was not itself a substantial statement and was therefore not a form of speech that warranted First Amendment protection.

But, on Wednesday September 18th, the Fourth Circuit Court of Appeals disagreed in an 81-page opinion and reversed the district court’s decision. Facebook and the American Civil Liberties Union had weighed in, filing amicus curiae briefs on behalf of the former employees.

In overturning the lower courts decision, Chief Judge William Traxler held that when Carter clicked “like” he published on his Facebook profile and on his friends’ news feeds, a substantive statement that he liked Roberts’ opponents’ campaign.  The court found that simply because a user may use a “single mouse click to produce the message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”  The court further specified that the like button is a form of symbolic speech because it is the internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech protected under the First Amendment.

It’s easy to dismiss Facebook “likes” as mindless knee-jerk reactions, because after all there is nothing really creative behind clicking a button.  When you click the thumbs-up icon on Facebook, you are essentially saying, “I like this.”  And as the court reasoned in Bland v. Roberts, a Facebook “like” qualifies as both substantial and symbolic speech that’s protected under the First Amendment.  But maybe “liking” something on Facebook is more akin to freedom of assembly?

Conceivably, the like button is an expression that is implicitly communal. Clicking “like” places you in a group with others who have also “liked” something and agree with whatever the message is that’s being promoted.  And since “likes” appear on your friends’ newsfeeds, perhaps a like is also a form of petition.

Facebook and the Internet have changed the way we communicate with one another.  When the Bill of Rights was written, expression was entirely physical and its forms were separate and distinct.  Religion pretty much stayed in the church, the press was easily identifiable, and people actually assembled in town squares to discuss an issue.  But today you can “like” your Church’s Facebook page and a blog post can be both speech and press.  The Bland court recognizes that it’s become increasingly difficult to decipher where one form of speech ends and another begins.  But in this digital age maybe we no longer have to.

Allison Saltstein

Allison Saltstein is a second year evening student at Fordham Law School and an IPLJ staff member.