Facebook 'Like' Entitled to First Amendment Protection, Appeals Court Rules

The ruling is unlikely to directly impact other cases.

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The U.S. Court of Appeals for the Fourth Circuit ruled Wednesday that a Facebook "like" is a form of speech protected by the First Amendment and "the Internet equivalent of displaying a political sign in one's front yard."

The court's ruling overturned an April 2012 decision by U.S. District Court Judge Raymond Jackson, who ruled that "[s]imply liking a Facebook page" is not "sufficient speech to garner First Amendment protection."

At hand was the suspected revenge firings by Hampton, Va., Sheriff B. J. Roberts of officers who supported his 2009 election opponent, Jim Adams.

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Daniel Carter alleged he was fired in part because he "liked" Adams' Facebook page. Roberts warned his deputies that supporting Adams would land them on the "short train" out of a job, even though police officers are legally entitled to express political beliefs in non-official capacities.

The appeals court analyzed in laborious detail what it means to like a Facebook page, then offered a twofold defense of the action's First Amendment protection.

"Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech," the court ruled. "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."

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In addition to being pure speech, the court ruled, "liking" a page is First Amendment-protected symbolic expression, because "the universally understood 'thumbs up' symbol in association with Adams's campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams's candidacy."

Five employees initially sued Roberts for firing them. If any of the cases are ultimately successful, Roberts will not be on the line for paying damages because he has qualified immunity, the court ruled.

The case attracted amicus briefs in favor of the fired policemen from the American Civil Liberties Union, Facebook and the National Association of Police Organizations.

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"This ruling rightly recognizes that the First Amendment protects free speech regardless of the venue, whether a sentiment is expressed in the physical world or online," Ben Wizner, director of the ACLU Speech, Privacy and Technology Project, said in a statement after the ruling. "The Constitution doesn't distinguish between 'liking' a candidate on Facebook and supporting him in a town meeting or public rally."

Lee Rowland, an ACLU staff attorney, told U.S. News the ruling's "legal principle is not earth-shattering." Rather, she said, the appeals court overturned a clear error by the district court.

"The courts have been pretty good at recognizing that speech is speech," Rowland said, so the ruling is unlikely to have a direct impact on similar cases.

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