Fourth Circuit “Likes” First Amendment Protection for Social Media Speech
October 15, 2013
A Facebook “like” is speech protected by the First Amendment, the Fourth U.S. Circuit Court of Appeals ruled, reversing a federal court decision that the form of social media communication was not eligible for constitutional protection.
“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,” the three-judge panel wrote. “In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable.”
The underlying facts of the case involved a sheriff’s office in Hampton, Virginia. During a 2009 election campaign, a handful of employees supported a challenger to incumbent sheriff B.J. Roberts, who had held the office for 17 years. When Roberts won reelection, he terminated six employees who supported the challenger. They sued the sheriff, alleging that he violated their First Amendment rights to free speech and free association.
Each of the employees stood behind the challenger in various ways, but two demonstrated their support on Facebook. Daniel Ray Carter, Jr., and Robert W. McCoy both visited the Facebook page of Jim Adams, the challenger. Carter “liked” the page and posted a “message of encouragement,” while McCoy authored a post to indicate his support. Roberts was made aware of the social media activities by other members of the department and made speeches during shift changes at the office in which he expressed his disapproval of the actions and added that he would be sheriff for as long as he wanted.
A federal judge dismissed the suit, finding that Carter and McCoy had engaged in insufficient speech to merit constitutional protection.
But the Fourth Circuit reversed, finding that the Facebook actions were not just constitutionally protected speech but also symbolic expression. “Liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it,” the court said. “In this way, it is the Internet equivalent of displaying a political sign in one’s front yard.”
The fact that the record was unclear about the content of the message posted by McCoy was irrelevant, the court said. “Certainly a posting on a campaign’s Facebook page indicating support for a candidate constitutes speech within the meaning of the First Amendment,” the panel wrote. “That the record does not reflect the exact words McCoy used to express his support for Adams’ campaign is immaterial as there is no dispute in the record that that was the message that McCoy conveyed.”
Given that Carter’s and McCoy’s speech was of a political nature, it was entitled to the highest level of protection, the panel said. However, qualified immunity protected the sheriff from monetary claims against him in his individual capacity, while Eleventh Amendment immunity protected him in his official capacity against suits seeking monetary relief.
Therefore, Carter, McCoy, and one other employee (who engaged in more traditional means of political support with a bumper sticker on his car) could pursue their claims for reinstatement, the court concluded.
Why it matters: While not an unexpected outcome, the Fourth Circuit’s decision makes clear that speech on social media is entitled to constitutional protection, even as slight as a single click to “like” a page. “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,” the court noted.