In a case of first impression, the United States Court of Appeals for the Fourth Circuit ruled that “liking” something on Facebook is a form of speech protected by the First Amendment. Bland v. Roberts, Docket No. No. 12-1671 (4th Cir., September 18, 2013)

Defendant, B.J. Roberts, was the Sheriff of the City of Hampton, Virginia. The six plaintiffs in the case, Bobby Bland, Daniel Ray Carter, Jr., David W. Dixon, Robert W. McCoy, John C. Sandhofer, and Debra H. Woodward, were all former employees of the Hampton Sheriff’s Office. Carter, McCoy, Dixon, and Sandhofer were sheriff’s deputies.  Bland and Woodward worked in administrative positions, Woodward as a training coordinator and Bland as a finance and accounts payable officer.

Roberts was running for re-election in 2009, having served as sheriff for the prior 17 years. Roberts won reelection, and thereafter reappointed most, but not all, of the Sheriff’s Office employees. Those not reappointed included the six plaintiffs. In 2011, plaintiffs filed a lawsuit in federal district court against Sheriff Roberts, alleging, among other claims, that Roberts violated their First Amendment right to free speech when he refused to reappoint them because of various instances of speech they made in support of Roberts’ electoral opponent. The facts alleged by each plaintiff differed to some extent. For example, plaintiff Carter alleged that he visited the Facebook page of Roberts’ electoral opponent and made statements on the page indicating his support for his campaign. Specifically, Carter “liked” the page and “wrote and posted a message of encouragement” that he signed. Carter’s Facebook actions became well-known in the Sheriff’s Office as many were shocked because “[he] appeared not to be supporting the sheriff.”

Roberts subsequently moved for summary judgment, and the district court granted the motion. With regard to plaintiff Carter’s free speech claim, the district court concluded that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” All plaintiffs appealed.

On appeal, the United States Court of Appeals for the Fourth Circuit made an exhaustive examination of the claims asserted by each plaintiff and ruled on each claim, reversing the summary judgment ruling on many but not all claims. With regard to plaintiff Carter’s free speech claim, the Court ruled that Carter’s conduct in “liking” the campaign page on Facebook qualified as speech entitled to constitutional protection:

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. 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.

The appeals court also equated “liking” a Facebook page with displaying a political sign in one’s front yard:

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 [constitutionally protected] speech. [citation omitted] Just as Carter’s placing an sign in his front yard [supporting Roberts’ electoral opponent] would have conveyed to those passing his home that he supported [the opponent’s] campaign, Carter’s “liking” [the opponent’s] campaign page [on Facebook] conveyed that message to those viewing his profile or the Campaign Page. In fact, it is hardly surprising that the record reflects that this is exactly how Carter’s action was understood [by other employee’s in the Sheriff’s Office].

The court also held that posting a message on a campaign’s Facebook Page indicating support for a candidate as Carter did constituted speech within the meaning of the First Amendment. As a result, the Fourth Circuit reversed the order granting summary judgment in favor of defendant Roberts and reinstated plaintiff Carter’s free speech claim.

The case is annexed here – Bland v. Roberts