Yesterday, the U.S. Court of Appeals in Richmond, Virginia
issued its decision regarding First Amendment protection of Facebook “likes” of
candidates’ Facebook pages. In ruling
that liking these Facebook pages is protected by the First Amendment, the Court
held found that these likes are “the Internet equivalent of displaying a
political sign in one’s front yard, which the Supreme Court has held is
substantive speech.”
The case emanated from an issue regarding employees of a
sheriff’s office who were terminated for supporting their supervisor’s
opponents. The support in issue was
evidenced by these employees endorsing their supervisor’s opponent’s Facebook
page. One of the employees also chose to
post pictures of the opposing candidate on his own Facebook page.
At issue was not merely the speech of the terminated
employees, but the fact that their support was evidenced by simply clicking an
icon and not necessarily their traditionally defined speech. Previously, two Federal Courts had held that
actual statements posted on a page are protected by the First Amendment. It was not until this most recent ruling that
the use of the “like” button was considered to be protected speech.
U.S. Circuit Judge William Traxler stated that, “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”. He continued by saying that, “the meaning that the user approves of the candidacy whose page is being liked is unmistakable”.
“Liking” something on Facebook is widely known to be an
expression of support for the original post or page that the person “likes”. While it is certainly not “speech” in the
traditional sense, so much can now be expressed with one click of the
mouse. While commenting on a page or
post further espouses one’s opinion, many people choose to express their
support not in words but in a more simple way that Facebook allows. To not protect these “likes” while extending
First Amendment protection to actual comments is unequal and unjust, and the
U.S. Court of Appeals (in this author’s opinion) has made the correct decision
in treating the two methods of support equally.
More information can be found by reading this Bloomberg
article.