Court Upholds Facebook ‘Like’ as Protected Speech

(CN) - "Liking" a political candidate on Facebook is "the Internet equivalent of displaying a political sign in one's front yard," and protected by the First Amendment, the 4th Circuit ruled.

In November 2009, B.J. Roberts, the sheriff of Hampton, Va., allegedly learned that six of his employees were actively supporting one of his opponents in the election, Jim Adams. Several employees had recently expressed their support for Adams by clicking the "like" function on a Facebook fan page for Adams and by attending a barbeque fundraiser.

Roberts then called a department meeting in which he allegedly advised the staff to get on the "long train" with him, rather than ride the "short train" with Adams.

After Roberts won re-election, he fired several employees, including the three civilian workers and three uniformed deputy sheriffs who supported Adams.

Bobby Bland, Daniel Carter, David Dixon, Robert McCoy, John Sandhofer and Debra Woodward sued Roberts in for violating their First Amendment rights.

A federal judge in Newport News found for the sheriff, ruling that "merely 'liking' a Facebook page is insufficient speech to merit constitutional protection."

But the 4th Circuit reversed that decision Wednesday, finding that "liking" something on Facebook is indeed a form of protected 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. 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," Chief Judge William Traxler Jr. wrote for a three-judge panel in Richmond. "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 added: "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."

Because the sheriff could have reasonably believed, however, that he could fire the employees for their speech indicating political disloyalty, Sheriff Roberts is entitled to qualified immunity on all plaintiffs' claims except their claim to reinstatement, according to the ruling.

"We understand why a sheriff would not find the law in this situation clear, particularly given that he is a lay person," Traxler wrote.

"We do not expect sheriffs to be judges and to have the training to sort through every intricacy of case law that is hardly a model of clarity."

On remand, the lower court must hold new proceedings on the plaintiffs' claims for reinstatement.

U.S. District Judge Ellen Hollander, sitting on the panel by designation from Maryland, disagreed with her colleagues on the qualified immunity finding.

"In 1997, this court delivered an unequivocally clear message to lay sheriffs," Hollander wrote. "Directly addressing sheriffs, the Jenkins court announced: 'We ... caution sheriffs that courts examine the job duties of the position, and not merely the title, of those dismissed.' Any person capable of serving as a sheriff surely would have understood that directive and would have grasped what all the members of this panel agree was 'the law ... in December 2009 regarding the legality of a sheriff firing a deputy for political reasons.'" (Ellipses in original.)

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