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Facebook Likes Free Speech

By Robyn Hagan Cain on August 08, 2012 | Last updated on March 21, 2019

Be careful what you "like” on Facebook.

This week, the social network filed a brief in a First Amendment retaliation challenge before the Fourth Circuit Court of Appeals, arguing that Facebook “likes” are free speech, reports GigaOM. A district court previously dismissed the case, finding that clicking that tiny thumbs-up button was “insignificant speech” that did not involve “actual statements.”

So how does a click-of-the-thumb turn into a tort?

In 2009, Daniel Ray Carter, a deputy in Hampton, Virginia, clicked a Facebook icon to "Like" the "Jim Adams for Hampton Sheriff" page. The problem is that his boss, incumbent-Sheriff B.J. Roberts, heard that Carter's "liked" his opponent, and fired Carter shortly after winning re-election.

Ordinarily, it is against the law to terminate an employee for his political opinions. When Carter sued, however, a Virginia judge ruled that "liking" a page, unlike writing an affirmative message on Facebook, was not protected under the First Amendment.

Both Facebook and the American Civil Liberties Union have since stepped up to "friend" Carter in court.

The ACLU claims that the district court reached the wrong conclusion. According to the ACLU, Facebook "likes" are free speech, The Associated Press reports. "It is binding First Amendment law that irrespective of an employee's position, a public employer cannot terminate him or her for speech on a matter of public concern unrelated to his or her job duties," the group argued in its amicus brief.

Facebook's amicus brief makes the same argument, comparing a Facebook to a 21st century-equivalent of a campaign yard sign. The social media giant's brief explains, "If Carter had stood on a street corner and announced, 'I like Jim Adams for Hampton sheriff,' there would be no dispute that his statement was constitutionally protected speech ... Carter made that very statement; the fact that he did it online, with a click of a computer's mouse, does not deprive Carter's speech of constitutional protection."

GigaOM notes that precedent appears to be on Carter's side. Do you think the Fourth Circuit Court of Appeals will agree that Facebook likes are free speech?

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