Think before you “like”

August 21, 2012

In a decision that was recently appealed to the Fourth Circuit Court of Appeals, an Eastern District of Virginia judge took what strikes me, at least, as an interesting angle on what is and is not protected by the First Amendment’s Speech Clause.

In Bland v. Roberts, — F.Supp.2d —-, 2012 WL 1428198, several Sheriff’s deputies claimed they were fired in retaliation for “liking” the Facebook campaign page of the sitting Sheriff’s opponent.  When the sitting Sheriff won re-election, the deputies were fired.  The deputies argued that they “engaged in constitutionally protected speech when they ‘made statements’ on [the opponent’s] Facebook page” by clicking the “Like” button for the page.

In deciding that the deputies’ act of “liking” a Facebook page was not constitutionally protected speech, the court drew comparisons to other cases involving free speech on Facebook.  See Mattingly v. Milligan, 2011 WL 5184283; Gresham v. City of Atlanta, 2011 WL 4601022.  The court said that both of those cases involved actual “statements” because the plaintiffs in those cases had actually posted something to Facebook, rather than simply clicking the “Like” button.  The court held that because the Bland case lacked a similar sort of actual statement, the act of  “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”

But it strikes me that this does not exactly jibe with a considerable line of First Amendment jurisprudence, namely those cases finding free speech protection for “expressive conduct” like burning a flag (R.A.V. v. St. Paul, 505 U.S. 377, among many others), raising a fist (Holloman ex rel. Holloman v. Harland, 370 F.3d 1252), or even honking a car horn (State v. Immelt, 267 P.3d 305)

For a plethora of examples, check on these search in All State and Federal on WestlawNext:

Search: (free! /3 speech) “first amendment” /250 (burn! /5 flag) (rais! /5 fist) “expressive conduct”

Search: First amendment expressive conduct

I find it very interesting that the Bland court only uses the word “expressive” twice, and doesn’t really go into an analysis of expressive conduct, simply concluding that there was no speech involved.  I think it will be even more interesting to see how the Fourth Circuit addresses the issue.

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