• The First Amendment Goes Digital - Clicking “Like” on Facebook is Speech
  • October 8, 2013 | Author: Kevin M. Shah
  • Law Firm: Proskauer Rose LLP - New York Office
  • With around 1.15 billion members, Facebook is a massive, global forum for communicating with friends and the world.  For many users, it often feels as if their news feeds are clogged with vapid comments about the weather, meal choices or the ever-present need for coffee.  But under other circumstances, such as the Arab Spring or in the wake of a controversial Supreme Court opinion, Facebook can become a powerful tool for political speech.  Beyond postings, photos and videos, drilling down to the most basic level, one click of a “Like” button can speak volumes.

    In a decision that expands the First Amendment’s definition of protectable speech, the United States Court of Appeals for the Fourth Circuit held in Bland v. Roberts, 2013 WL 5228033 (4th Cir. Sept. 18, 2013)  that clicking the “like” button on a Facebook page qualifies as speech.

    In Bland, former sheriff’s deputies of the Sherriff’s Office in Hampton, Virginia alleged that the Sheriff violated their First Amendment rights by choosing not to reappoint them based upon their lack of political affiliation with him during the election campaign.  One plaintiff, Daniel Ray Carter, Jr., expressed his political views via Facebook by, among other things, clicking “like” on the Facebook page of the Sheriff’s opponent and posting comments indicating support for the Sheriff’s opponent on the same Facebook page.  The Sheriff, upon learning about the actions of Carter, warned them that such actions “would cost him his job.”  Upon being re-elected, the Sheriff did not reappoint any of the plaintiffs to their previous positions in the Sheriff’s Office.  Carter alleged that the Sheriff violated his First Amendment rights when he refused to reappoint him based upon his apparent lack of political allegiance to the Sheriff evidenced by Carter’s Facebook “like” of the Sheriff’s opponent.

    The lower court ruled that Carter’s Facebook “like” was not expressive speech and that he failed to prove a causal link between his support of the Sheriff’s opponent and his non-reappointment. However, the Fourth Circuit reversed as to Carter’s claims and held that “liking” a Facebook page fell within the bounds of constitutionally protected speech (to be sure, although the appeals court reinstated Carter’s claim, it held that Carter could only seek reinstatement as a remedy, as the Sheriff was protected against a claim of monetary damages due to qualified immunity).

    The court’s reasoning was buttressed by its understanding of the expressive effect of a Facebook “like” in the online realm. According to the court, clicking “like” on the Sheriff’s opponent’s Facebook page caused the page’s name and a photo of the candidate to show up on the user’s own Facebook page, as well as triggering an item to appear on the news feed of the user’s Facebook friends. Clicking on the “like” button, as the Court noted, “literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.”  In fact, the court stressed that social media offers individuals a powerful message board to communicate political and other views to the larger public through the mere use of a tiny button: “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.”   By pressing the “like” button, represented by a thumbs-up icon, Carter symbolically conveyed his support for the Sheriff’s opponent — the “Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”  

    While James Madison likely did not have Facebook in mind when he drafted the First Amendment, the Court’s decision modernizes the First Amendment a bit. With the ubiquity of social media, it’s a welcome treat that the court took time to understand the technology and adapt the law to the evolving digital age.”