Circuit court ‘likes’ free speech

Fourth Circuit rules that “liking” on Facebook is protected by the First Amendment

In debates that focus on the Bill of Rights, the argument often made is that the Founding Fathers could not have envisioned modern technology, and, therefore, did not have it in mind when they drafted the document.  The dispute often comes up when discussing whether the Second Amendment should cover automatic weapons. And it occurs quite often when considering whether the First Amendment protects modern communications technology.

Ever since Edward Snowden disclosed details of the National Security Agency (NSA) surveillance program known as PRISM, the conversation on the legal protection afforded to electronic communication has grown louder. And, as people continue to reveal more and more of their personal lives on social sites such as Facebook and Twitter, the courts must decide if these new channels are similar to or different from more traditional modes of communication.

Now, there is at least one clear message coming down from the courts concerning Facebook and the First Amendment. The Fourth Circuit ruled that the First Amendment does indeed cover Facebook “liking” as protected speech. 

The case in question involved a group of former deputies who were terminated by a Virginia sheriff. The deputies contend that they were wrongfully terminated because they “liked” the Facebook page of a candidate for sheriff who was running against their boss. The court ruled that liking a page on Facebook was similar to posting a political sign on one’s lawn, which the Supreme Court considers substantive speech. Previous court rulings have granted protection to Facebook posts, but an earlier ruling in this case held that the mere act of “liking” was not enough to merit 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 substantive statement,” Chief Judge William B. Traxler, Jr. wrote on behalf of the three-judge panel.

The ruling marks a win for Facebook, which has faced criticism for not taking its users’ privacy seriously enough. The court’s decision helps assure users that they can hit that “thumbs up” button as much as they’d like, without fear of persecution from disgruntled employers. You can bet that Mark Zuckerberg is ready to “like” Judge Traxler’s page.

 

Contributing Author

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Rich Steeves

Richard P. Steeves is Managing Editor of InsideCounsel magazine, where he covers the intellectual property and compliance arenas. Rich earned a B.A. in English Literature...

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