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Court Rules Facebook “Likes” are Speech Protected by the First Amendment

Court Rules Facebook “Likes” are Speech Protected by the First Amendment

For a while now, I’ve had an interest in “Social Media Law.” I’m using quotes because, when people ask me, “What is Social Media Law?,” I have to answer that there’s no such thing, exactly. The issues relate to how existing laws apply in the social media context. A recent case demonstrates the intersection between so-called Social Media Law and Constitutional Law (which is a real thing).

Most of my previous blog posts in this area have concerned the National Labor Relations Board’s increasingly broad rulings regarding employees’ speech rights. Here’s an example of a recent post on the subject. This one, however, has to do with a ruling by the Fourth Circuit Court of Appeals. Short of a Supreme Court ruling on the subject, this is now the law of the land, at least within the 4th Circuit (which covers Virginia, West Virginia, Maryland, and North and South Carolina.)

The issue here was as follows: Deputy Sheriff Daniel R. Carter Jr. was fired from the Hampton, Virginia Sheriff’s Department, allegedly because Carter “Liked” the Facebook page of Jim Adams, Sheriff B.J. Roberts’ rival in a 2009 election. Deputy Carter sued, alleging that his firing violated his First Amendment right to protected political speech. The Court’s full opinion can be read here.

The Court of Appeals noted that “Not only does the First Amendment protect freedom of speech, it also protects ‘the right to be free from retaliation by a public official for the exercise of that right.'” (Citing Suarez Corp. Indus. v. McGraw, 202F.3d 676, 685 (4th Cir. 2000).)

The Court acknowledged that there is a balance to be found between public employees’ rights to speak as private citizens and the government’s interest in ensuring efficient operation. They went on to cite the following test:

[I]n order for a public employee to prove that an adverse employment action violated his First Amendment rights to freedom of speech, he must establish (1) that he “was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest”; (2) that “the employee’s interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public”; and (3) that“the employee’s speech was a substantial factor in the employee’s termination decision.” McVey v. Stacy, 157 F.3d 271,

The Court further clarified that public officials in roles that are confidential, in which they make policy, or that involve public contact, have less First Amendment protection compared to lower-level employees. In this case, Deputy Carter was found to be a lower-level employee.

Can something as brief as a Facebook “Like” amount to protected political speech? The Court answered yes – correctly, in my opinion. From the Court’s ruling:

“Liking” on Facebook is a way for Facebook users to share information with each other…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…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. See City of Ladue v. Gilleo, 512 U.S. 43,54-56 (1994).

The Court went on to cite two relevant cases to emphasize the highly protected nature of political speech under the First Amendment:

Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 329 (2010)* (describing political speech as “central to the meaning and purpose of the First Amendment”); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995)(“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” (internal quotation marks omitted)).

The facts clearly showed that Carter’s “Like” of Adams’ Facebook page was a factor in Carter’s termination. As a result, the ruling on this point went in Carter’s favor, and he may be entitled to his job back (although he is not entitled to money damages, because the Sheriff enjoys immunity under to the Eleventh Amendment’s “sovereign immunity” clause – the Constitution giveth and it taketh away.)

So, next time you “Like” something on Facebook, you can be reassured that you’re not just wasting time – you’re exercising your right to Free Speech under the First Amendment to the United States Constitution.

* Of course, I’m now tempted to turn this into a discussion of the merits of Citizens United, but I’ll refrain, in the interest of staying on point.

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