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

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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.

Federal Court Says Facebook 'Like' Not Like Protected Speech

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A black armband, a burning cross and a torched American flag are among numerous examples of "speech" that the U. S. Supreme Court has characterized as worthy of First Amendment protection. So-called "symbolic speech" cases involve conduct through which the actor intends to convey a specific message and the audience reasonably understands the intended message.

The concept is familiar to media law students, but apparently is lost on United States District Court for the Eastern District of Virginia Judge Raymond Jackson, who last week ruled in Bland v. Roberts (2012 U.S. Dist. Lexis 57530, 4:11cv 45 E.D. Va.; Apr. 24, 2012) that social media users who press Facebook's thumbs-up "Like" icon are not engaged in First Amendment protected speech.

As reported by the Websites Arstechnical.com, Citmedialaw.org and elsewhere, the case involved six civilian Hampton County Sheriff's office employees who, unenamored of incumbent B.J. Roberts, attended cookouts, posted bumper stickers, and of greater relevance here, pressed the "Like" button on the Facebook page of challenger Jim Adams. Roberts won the election and terminated the six employees, citing budgetary constraints, but the workers shown the door claimed their protected First Amendment rights of speech and association were violated.

In allowing Roberts' summary judgment motion, Judge Jackson ruled: "Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection." Beyond conceding Sheriff Roberts being aware that some of his staffers appeared on his challenger's Facebook page, the court refused to "infer the actual content of [plaintiff's] posts from one click of a button on Adams's Facebook page." Moreover, Judge Jackson cited the lack of evidence that Roberts knew about the bumper stickers, cookout attendance or other actions by the fired workers in support of Adams's campaign.

In the not-so-humble opinion of the "TUOL" staff, Judge Jackson's ruling is ripe for appeal. Clicking on the virtual famous Facebook thumb is a shorthand (no pun intended) way of saying to your million close Facebook friends: "I like Jim Adams and hope he wrests that Sheriff's badge from B.J. Roberts." Endorsing a candidate as protected First Amendment activity is a Westlaw query bound to yield oodles of established case law in its results.

Yes, Virginia, besides Santa Claus, there is also a Free Speech Clause.