Facebook “like” actually is First Amendment speech, says appeals court

September 24, 2013

Like as expression

Last week, the Fourth Circuit ruled in the Bland v. Roberts case

I was proven right yet again.

Some of you may be wondering if I ever get tired of always being right.  The answer is that I do not (even though it makes life boring at times).

I covered the trial court’s ruling on Bland in May of last year.  That case started as a retaliation suit brought by some former employees of the Hampton City Sheriff’s Office in Virginia, who claimed that they were fired in retaliation for their “exercise of their right to freedom of speech when they chose to support the current sheriff’s opponent in the election.”

This “free speech” consisted of “liking” the current sheriff’s opponent’s Facebook page.

The Bland trial court ruled, however, that a Facebook “like” is not speech within the definitions of the First Amendment.

For those of you who didn’t read my article (likely because you still wanted to be surprised by future events), I expressed my belief that the Bland trial court plainly “got it wrong” on this issue.

Last week, the Fourth Circuit Court of Appeals agreed, holding that it is “apparent that [“liking” the sheriff’s opposition’s Facebook page] qualifies as speech.”

Of course, the vast majority of observers agreed before the appeals court ruled in this case that the trial court was clearly incorrect on the issue of whether a Facebook “like” qualifies as First Amendment speech.

But I also noted that the trial court’s opinion “ended with a fairly defensible finding of two different classes of immunities for the sheriff,” and as such, “there’s very little chance of success for these individual plaintiffs.”  This would make an appeal unlikely since there would be such a small chance of success for the plaintiffs, and “there wouldn’t be much in it for the individual plaintiffs.”

But there was an appeal, so what happened?

As I said back in my May 2012 article, “if some outside advocacy groups get involved and offer support for an appeal, then such an appeal is likely.”

That actually happened, as I wrote about in August of 2012: a week after the appellants’ brief was filed, the American Civil Liberties Union (ACLU) and Facebook both filed amicus briefs in support of the appeal.

But while the appeals court corrected the trial court’s obvious mistake on the Facebook “like” issue, it also did just as I predicted on the immunity issues: affirmed the trial court.

True, the appeals court only found that qualified immunity applied against the former employees’ claims for monetary damages, not reinstatement.  However, the claims discussed in the trial court were only in terms of monetary damages, so it seems as though the employees were originally interested in seeing a cash payout rather than getting their old jobs back – making the ruling effectively fatal to the employees’ claims.

Nevertheless, the Fourth Circuit’s ruling holding that a Facebook “like” is “speech” under the First Amendment does “make the rest of us feel better.”

Instead of a federal trial court ruling that a Facebook “like” isn’t First Amendment speech, the result of this case is a ruling by a federal circuit appeals court holding the opposite – one with significantly more precedential value than a simple trial court ruling.

That the precedential value is one of expansive speech protections, with the Fourth Circuit holding that Facebook “likes” are entitled to the same First Amendment speech protections as any other speech.  Furthermore, the employee’s “like” of the sheriff’s opponent’s page receives “the highest level of protection” because it was political speech.

In addition, the Fourth Circuit held “liking” a Facebook page is analogous to placing a physical sign in one’s own front yard advertising personal support for the subject of the page – an activity that falls squarely into the First Amendment’s definition of “speech.”

Although it’s not as if the trial court’s ruling really slowed anyone down, everyone can go back to “liking” things on Facebook without worrying whether it’s protected by the First Amendment.