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Facebook 'Likes' Are Protected Free Speech, Says 4th Cir

By William Peacock, Esq. | Last updated on

My Facebook page contains 222 likes, some of which are probably embarrassing and not at all representative of my actual interests. Sometimes you "like" something because there is a giveaway. Sometimes you do so sarcastically. Then again, sometimes, you "like" something because you appreciate the brand or person and want the world to know.

And, of course sometimes, you get caught "liking" your boss's opponent in the next election.

In 2009, Sheriff BJ Roberts noticed that six of his employees had "liked" his opponent's page. His opponent, Lieutenant Colonel Jim Adams, was the third-most senior officer in the department. After prevailing in the election, Roberts terminated the employment of all six men. They, in turn, sued for retaliation, with one of the men, Daniel Ray Carter, creatively asserting that a Facebook "like" was protected speech.

'Like' Is Speech

The district court, while noting that Facebook posts had previously been recognized as speech, held that free speech required something more substantive than clicking a button. The Fourth Circuit, panel, however, unanimously disagreed, likening the "like" to placing an election yard sign on one's lawn.

Judge Traxler, writing for the majority, stated, "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."

But No Damages

Ah, qualified immunity: you strike again. The majority held that because it was not clearly-established law that a deputy officer, with duties of a jailor, could be dismissed on the basis of his personal beliefs, Sheriff Roberts and the department were immune from money damages for retaliation. Qualified immunity protects government officials who act in the course of their duties, unless their actions violate law that was clearly established at the time of the incident.

Judge Hollander dissented from the immunity portion of the majority's opinion, arguing that the majority's reliance the cloudiness of the law was incorrect. The job duties of the discharged employees were clearly that of jailors, not of deputies with "partisan political interests" related to their jobs.

For example, a mayor can fire a political appointee that manages, say, education policies, but he cannot fire a janitor for voting against him.

Facebook "Likes" the Ruling

Unsurprisingly, Facebook submitted an amicus brief earlier in the case, arguing that "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."

Limits on Today's Ruling

This may go without saying, but a Fourth Circuit holding only applies in the Fourth Circuit (W. Va, Va. NC, and SC). It could, however, provide persuasive authority for other courts. Also, though "likes" are now considered protected speech, obviously, speech protections aren't as great for private employers.

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