Does clicking the “Like” button on Facebook amount to protected speech under the Constitution? According to a ruling on Wednesday from the Fourth Circuit, yes, it does. In fact, according to the Court, “it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”
The Court’s decision in Bland v. Robertsdoesn’t have any direct impact for private employers because it solely deals with the First Amendment rights of a group of public employees’ from the Sheriff’s office in the City of Hampton, Virginia. However, we have been waiting for this ruling to see how the Court viewed the legal impact of “liking” something or someone on Facebook. We wondered whether the Court find that one mouse click equates to conduct that is protected under the law?
So, let’s take a look at the background of this case. The dispute arose because a group of employees refused to support their boss – the local Sheriff – in his reelection campaign and instead expressed support for his opponent. According to the employees, that support cost them their jobs. After the Sheriff won reelection, he refused to reappoint the employees and they sued claiming the Sheriff violated their First Amendment right to free speech.
The employees expressed their support for the other candidate in various ways, but the one that interests us is the employee who “liked” the opposing candidate’s Facebook page. Prior to the appeal to the 4th Circuit, the district court had found that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”
But the Court of Appeals disagreed noting that when the employee clicked “like”, several additional things happened. First, the candidate’s campaign page’s name and a photo of the candidate were added to the employee’s profile, which other Facebook users could view. Additionally, Facebook issued a notification that the employee liked the candidate’s campaign page, and the employee’s name and profile photo were added to the candidate’s campaign page’s “People [Who] Like This” list.
The Court held that the fact that “a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”
Several things about this case interested me. For example, how will this case be used in other legal contexts? Presumably, the National Labor Relations Board will jump on this case to support the notion that “liking” something on Facebook constitutes protected concerted activity. Additionally, there was such a stark contrast in how the district court thought about a Facebook “like” versus the Court of Appeals – how will other courts view similar activity?
The district court seems to have focused on the mechanics – liking is just clicking a button – but the Court of Appeals really dug into the implications of that mouse click, engaging in a multi-page analysis of “what it means to ‘like’ a Facebook page.” Reading, in a court opinion, a lengthy explanation of how Facebook works, what users do to log on and create a profile, etc. is rather amusing since much of what the Court included seems so obvious to the rest of us, but I give them credit for taking the time to do a careful analysis.
What other actions on Facebook might be considered protected under various laws? What about being “tagged” in a photo at a political event or a fundraiser – would that be enough to show an employee’s support for a particular cause? It will be interesting to see how this all unfolds.