Does a Facebook “Like” constitute speech for the purposes of the 1st Amendment? In April, a federal judge in Virginia concluded that it did not in Bland v. Roberts (E.D. Va. Apr. 24, 2012). Many legal spectators, including me, disagreed with the holding and speculated that the decision would be appealed.
It’s nice to be right once in a while.
The case has been appealed to the Fourth Circuit and, on Monday, Facebook filed an amicus brief in support of having the decision reversed. The brief is not quite as exciting as I’d hoped and contains only minimal legal analysis. Most of the brief is devoted to providing factual background about Facebook, how it’s used, and the idea of “Liking” a page or post.
To the credit of Facebook’s counsel, though, I suppose there’s not much legal analysis to provide. The analysis, actually, is quite simple. Contrary to the District Court’s finding, Liking online content is speech–it is a statement by the User. In Bland, the plaintiff-appellant Liked a candidate in the Sheriff’s race (who happened to be running against the plaintiff’s boss). Liking the campaign Page was the digital equivalent of putting a sign in your front lawn that reads, “Support X for Sheriff.”
Moreover, because the Like was an endorsement of a candidate running for elected office, it seems difficult to imagine how it would not be considered political speech, which receives the highest level of First Amendment protections.
The District Court avoided this conclusion by holding that the Like did not “involve actual statements.” But “statements” are not the only type of “speech” to receive constitutional protection. It has been long settled that “symbolic” speech receives First Amendment protection. The example that comes to mind is the burning of the American flag, which the U.S. Supreme Court held to constitute symbolic speech protected by the First Amendment in Texas v. Johnson.
If the appellate court does reverse, the plaintiff-employee does not win by default. The employer still could argue that he was not terminated as a result of his protected speech or any other defenses that may apply. In the meantime, I’ll be curious to see how the employer deals with the present question–is Liking a Facebook page or post “speech” for the purposes of the First Amendment.