UPDATE: 4th Circ. Says Clicking Facebook 'Like' Icon 1st A. Protected Speech

(Photo credit: Wikipedia)

In an important free speech decision, the United States Court of Appeals for the Fourth Circuit this week in Bland v. Roberts (Case No. 12-1671) reversed the trial court and found that clicking the thumbs-up Like icon on Facebook constitutes First Amendment-protected speech.

The case involved Hampton (Va.) Sheriff B.J. Roberts who, following his re-election in a hotly contested struggle with challenger Jim Adams, fired Daniel Ray Carter among other deputies who had "Liked" Adams' Facebook page in 2009 (See "TUOL" post 5/1/12). The ousted lawmen sued on the grounds that their First Amendment rights had been trampled, but United States District Court for the Eastern District of Virginia Judge Raymond Jackson found against them, ruling: "[L]iking a Facebook page...is not the kind of substantive statement that has previously warranted constitutional protection."

But, according to accounts in The Wall St. Journal, The Volokh Conspiracy blog and elsewhere, the Fourth Circuit begged to differ in its 81-page decision, finding that the deputies' icon-clicking was both pure speech and symbolic speech worthy of First Amendment protection. Liking a candidate's Facebook page, the appellate panel said, "is the Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech."  Moreover, clicking the thumb icon is symbolic speech in that the actor, through his conduct, is intending to convey a message, and that intended message--Jim Adams would be a good sheriff-- is reasonably understood by the audience.

DOR Request for Amazon Sales Data Violates First Amendment

Image via Wikipedia
The U.S. District Court for the Western District of Washington this week ruled in Amazon.com v. Lay (Case No. C10-664-MJP) that efforts by former North Carolina Dept. of Revenue Secretary Ken Lay to obtain information from Amazon, Inc. regarding sales to North Carolina residents for tax purposes violated the First Amendment.


As first reported by The Volokh Conspiracy blog, Judge Marsha J. Pechman cited the U.S. Supreme Court decision in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) for the principle that anonymity "exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular."  The Court held that the government had no right to know what music, books and audiovisual materials North Carolinians were purchasing through Amazon.com.

In her 26-page opinion granting Amazon's request for summary judgment and denying DOR's motion to dismiss, Judge Pechman wrote: "[T]o the extent the March Information Request demands that Amazon disclose its customers' names, addresses or any other personal information, it violates the First Amendment and 18 U.S.C. sec. 2710 only as long as the DOR continues to have access to or possession of detailed purchase records obtained from Amazon."