Does “liking” on Facebook merit constitutional protection?

In a recent decision, a U.S. District Court judge in Virginia ruled that “liking” a Facebook post is “insufficient speech to merit constitutional protection.”[1] The case arose because six sheriff’s office employees were fired for supporting the incumbent Sheriff’s political challenger in an election. This support, for three of the fired employees, was in the form of a Facebook “liking” of the challenger’s page. The significance of this case is obvious given the rapid expansion of social media.

Two previously decided federal cases held that statements written on Facebook were constitutionally protected speech.[2] In his opinion, Judge Jackson distinguished these cases because in both cases “actual statements existed within the record” for constitutional protections to be afforded.[3] No such statement was made in the present case, and Judge Jackson held “liking” a Facebook page is not a form of substantive speech that should be constitutionally protected.[4]

Clearly “liking” a Facebook page is not the traditional written or verbal statement that is usually the subject of freedom of speech cases. However, society has become more technology centered and involved with social media.  Non-traditional actions such as “liking” a Facebook comment have become common. These actions are an easy way for people to express themselves and make statements of support for a politician, or anything else, easily. “Liking” someone’s status or comment is viewed as an endorsement of that message. Therefore, while a person may not have actually written the statement, by “liking” it they have made an expression of support for the statement. This is akin to signing a petition. While a petition signer may not be responsible for drafting the substance of it, by signing it they are making a statement of support endorsing what the petition is trying to accomplish. Surely this example is a type of speech that would be considered sufficient to merit constitutional protection.

Furthermore, freedom of speech protection has been afforded to other types of symbolic behavior that did not involve an actual statement being made. For example, in Texas v. Johnson burning the American flag was held to be constitutionally protected speech.[5] While this is a dramatic example, it illustrates that speech has many different forms and all are entitled to protection.

The ruling is being appealed to the U.S. Court of Appeals. If upheld, it could have significant ramifications by making it easier for employers to tighten their grip on employees’ speech located on social networking websites.[6]



[1] Bland v. Roberts, No. 4:11-CV-45, 2012 U.S. Dist. LEXIS 57530 (E.D. Va. Apr. 24, 2012)

[2] See Mattingly v. Milligan, 2011 U.S. Dist. LEXIS 126665 (E.D. Ark. Nov. 1, 2011) (holding statement written on Facebook wall was sufficient speech to be constitutionally protected); see also Gresham v. City of Atlanta, No. 1:10-CV-1301, 2011 U.S. Dist. LEXIS 116812 (N.D. Ga. Aug. 29, 2011).

[3] Bland, 2012 U.S. Dist. LEXIS 57530, at *10.

[4] Id.

[5] Tex. v. Johnson, 491 U.S. 397 (1989).

[6] Doug Gross, Virginia deputy fights his firing over a Facebook ‘like’, CNN Tech (August 12, 2012, 1:00 PM), http://www.cnn.com/2012/08/10/tech/social-media/deputy-fired-facebook-like/index.html?hpt=hp_bn5.

Author: Paul Davis

Paul Davis is an associate editor. He graduated with honors from Rutgers – New Brunswick School of Arts & Sciences with a bachelor's degree in History. Prior to attending law school he worked for the sales department of AT&T Mobility. Paul is an active member of the Environmental Law Society as a 2L representative. Last summer he interned with the New Jersey Office of the Attorney General, Division of Law and Public Safety where he was assigned to the Consumer Fraud Protection Division. He is an avid follower of the New York Giants and Yankees, and enjoys reading fiction novels.

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