Is “Liking” Free Speech?

A recent Fourth Circuit appeal begs the question “is ‘liking’ something on Facebook protected by the Constitution under the First Amendment?”[1] The lawsuit is rooted in a 2009 sheriff’s election in Hampton, Virginia.[2] Daniel Ray Carter, a sheriff deputy, was allegedly fired for “liking” the page of his boss’s, the Sheriff who was up for reelection (“the Sheriff”). [3] A U.S. District Judge held that merely “liking” a page is “insufficient” to constitute free speech and not “substantive” enough to merit constitutional protection.[4] Carter and others who were similarly fired are now appealing to the Fourth Circuit Court of Appeals.[5] The American Civil Liberties Union (ACLU) and Facebook have joined in support of the Plaintiff-Appellees, submitting briefs for the Appeal.[6]

The District Court relied on prior cases involving Facebook “posts” to determine that “liking” was insufficient as expressive speech.[7] In the past, only those cases with Facebook “posts” were deemed to have enough speech to warrant constitutional protection in the past.[8] The requirement of written consent was not an issue in this case.[9] The Court also found no merit to the Freedom of Association claims because the Plaintiff’s political positions were unclear, and moreover, the Sheriff was entitled to both qualified immunity and Eleventh Amendment immunity.[10]

The ACLU has responded that “liking” on Facebook is protected by the First Amendment.[11] It is both pure speech and symbolic expression.[12] The “Like” button clearly establishes that the user supports or approves of the content, and does not require that content to be inferred as suggested by the District Court. [13] The ACLU has compared “liking” a political candidate on Facebook to endorsing that candidate in the same way that wearing a political button does.[14] Facebook has similarly argued that “liking” something is as if that person stood on a street corner and announced that he liked that thing.[15] The ACLU also highlights that the District Court erroneously required the speech to be “clear” for it to be constitutionally protected.[16] The First Amendment does not have any such requirement, and even if it were, “liking” does have a clear meaning. [17] Regarding the District Court’s requirement for written content, Facebook contends that because the “liking” generates a statement and communicative imagery on the User’s Profile and News Feed, “liking” is written content.[18]

Moreover, the ACLU emphasizes that internet speech enjoys the same first amendment rights as traditional forms of speech.[19] They go on to argue that the District Court applied the incorrect standard and the Sheriff is not eligible for qualified immunity.[20]

The suit uncovers novel constitutional issues that emphasize the unchartered intersection of law and new technology. Whether “liking” becomes constitutionally protected or not, it will still be unclear what forms of publicized opinion will be protected or unprotected. Cases such as this will hopefully guide courts in their future determinations, but given the mulititude of forms of expression that can potentially be created, the courts will likely employ a case by case analysis.



[1] Elizabeth Hewitt, ACLU: Facebook “Like” is Free Speech, The Slatest (Aug. 9, 2012, 4:56 PM), http://slatest.slate.com/posts/2012/08/09/aclu_and_facebook_file_briefs_arguing_the_like_button_is_protected_free_speech_.html.

[2] Id.

[3] Bland v. Roberts, No. 04:11cv45, 2012 WL 1428198, at *1-3 (E.D. Va. Apr. 24, 2012).

[4] Id. at *5-6.

[5] Id. at *1-3.

[6] Hewitt, supra note 1.

[7] Bland, 2012 WL 1428198, at *6.

[8] Id.

[9] Id.

[10] Id. at *10-17.

[11] Brief for American Civil Liberties as Amici Curiae Supporting Plaintiff-Appellants, at 5, Bland v. Roberts, No. 12-1671 (4th  Cir. Aug. 6, 2012), available at http://www.aclu.org/files/assets/bland_v._roberts_appeal_-__amicus_brief_.pdf  [hereinafter ACLU Brief].

[12] Id.

[13] Id. at 6.

[14] Id. at 9.

[15] Brief for Facbook, Inc. as Amici Curiae Supporting Plaintiff-Appellants, at 3, Bland v. Roberts, No. 12-1671 (4th  Cir. Aug. 6, 2012), available at http://www.aclu.org/files/assets/bland_v._roberts_appeal_-__facebook_amicus_brief.pdf [hereinafter Facebook Brief].

[16] ACLU Brief, supra note 11, at 10.

[17] Id.

[18] Facebook Brief, supra note, at 9.

[19] ACLU Brief, supra note at 13.

[20] Id. at 15-29.

Author: Angela Yu

Angela Yu is the Editor-in-Chief of the Rutgers Computer & Technology Law Journal and is currently in her third year of the dual degree JD/MBA program. She graduated from Northwestern University with a degree in Art History and Legal Studies. Most recently, she interned at Cisco Systems as an in-house legal intern, learning firsthand about some of the most cutting-edge technologies and their legal complications. Angela is combining her interests in business and technology with her pursuit of legal practice. In her spare time, Angela enjoys exploring her interest in the arts and traveling.

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