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Is Facebook the new town square?

4th Circuit court ruling on Facebook “liking” affirms court’s willingness to acknowledge the importance of social media

Let’s say my colleague Chris DiMarco is running for First Selectman of his hometown. There are a number of ways I can show my support for his campaign. I could open up my wallet and order a bunch of “Vote DiMarco” bumper stickers and lawn signs from the Internet. Or, I could go to the town green where he lives, get up on and old milk crate and start effusively praising his intelligence and wisdom.

But those take an awful lot of work. I have to, you know, procure the signs or actually travel to the green and speak. There has to be an easier way for me to show my support for this candidate? Well, nowadays, there is. With one click of a mouse button, I can tell the world that I support Chris DiMarco’s candidacy. But what if Editor-in-Chief Erin Harrison supports another candidate and wishes to use my Facebook like against me?

Well, according to the 4th Circuit, Facebook liking is sufficient speech to warrant protection under the First Amendment. No federal court had previously ruled on whether mere liking was protected, although other courts had ruled on Facebook comments.

“This is the first time a federal court of appeals ruled on whether one swift keystroke was significant enough to qualify as speech,” says Allison Brehm, partner at Kelley Drye & Warren. “It shows how law under the First Amendment is adapting to social media, which is, in essence, our town square. 

Facebook boasts more than a billion users and more than 3 billion “likes” are registered each day, which serves to illustrate that social media sites are where public discourse takes place these days.

The 4th Circuit’s decision, says Brehm, is one that companies should note. “It is important that public employers take note of the decision as they monitor social media activities. They should be circumspect before using social media activity for grounds for termination.”

In many ways, social media speech is very similar to traditional speech. It’s akin to putting that sign up on your lawn. The biggest difference, of course, is that it can be done quickly, cheaply and easily, which makes it a great democratizer.

As for further ramifications of the ruling, Brehm says that lawyers can argue both sides with this one. “If you want this to qualify as free speech, you would argue that this ruling would apply to other media. If you are on the other side, you’d argue that it is a narrow ruling.”

So, for those of us who prefer Google+ or Twitter, we should be extra wary, as the courts have not yet decided whether to “like” those channels.



Senior Editor and Community Manager

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Rich Steeves

Richard P. Steeves is Senior Editor and Community Manager of InsideCounsel magazine, where he covers the intellectual property and compliance beats. Rich earned a B.A....

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