Thursday, October 3, 2013

Facebook “likes” as free speech

In Bland v. Roberts, a Virginia federal court dismissed a First Amendment retaliation lawsuit brought by a group of terminated city employees who had supported the incumbent sheriff’s opposition by, among other things, liking the candidate’s campaign Facebook page. The court concluded that merely clicking the “like” button on a Facebook page is not Constitutionally protected speech.

At the time, I took issue with the court’s opinion (quoting Eugene Volokh):

A Facebook “like” is a means of conveying a message of support for the thing you’re liking. That’s the whole point of the “like” button; that’s what people intend by clicking “like,” and that’s what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the “like” conveyed…. Putting a “Jim Adams” bumper sticker on one’s car would be constitutionally protected. Putting such a sign on one’s lawn would be constitutionally protected. “Liking” Jim Adams on Facebook is equally constitutionally protected.

I called for the 4th Circuit to reverse this misinformed precedent, and the 4th Circuit listened. Last month, the Court reversed the trial court’s dismissal, holding that the First Amendment protects Facebook “likes.”

Once one understands the nature of what Carter 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. … 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.

Unlike their private-sector counterparts, public employees enjoy free-speech rights in the workplace (the NLRB notwithstanding). This case reaches the common-sense conclusion that these free-speech rights extend to symbolic speech on social networks, such as liking a Facebook page or post, or retweeting someone’s tweet. Thus, public employers need to take heed before taking action based on these online activities.

This post originally appeared on The Legal Workplace Blog.