Facebook ‘Like’ Is Protected Speech, Appeals Court Says

Using Facebook Inc. (FB)’s “Like” feature to show support for a candidate in an election is speech shielded by the U.S. Constitution, a federal appeals court said, handing a victory to the social networking company which argued such protection is vital to its business.

The U.S. Court of Appeals in Richmond, Virginia, issued its ruling today in a lawsuit brought by former employees of a sheriff’s office who said they lost their jobs because they supported their boss’s opponent, partly by endorsing a campaign page on Facebook.

The appeals court reversed a lower-court judge who said that simply clicking the “Like” button on a Facebook page didn’t amount to “a substantive statement” that warrants constitutional protection.

“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,” U.S. Circuit Judge William Traxler wrote. “It is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

The post, made four years ago when a Virginia jailer clicked the “Like” button on the “Jim Adams for Hampton Sheriff” Facebook page, became the subject of arguments over how to view one-click, online endorsements of a person, idea or product.

Photographer: Simon Dawson/Bloomberg

The federal appeals court reversed a lower court judge who said that simply clicking the “Like” button on a Facebook Inc. page didn’t amount to “a substantive statement” that warrants constitutional protection. Close

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Photographer: Simon Dawson/Bloomberg

The federal appeals court reversed a lower court judge who said that simply clicking the “Like” button on a Facebook Inc. page didn’t amount to “a substantive statement” that warrants constitutional protection.

Facebook’s Position

Facebook, based in Menlo Park, California, said in arguments before the appeals panel in May that the “Like” feature is vital to 500 million people who share ideas on the social network and must have free-speech protection.

“We are pleased the court recognized that a Facebook ‘Like’ is protected by the First Amendment,” Pankaj Venugopal, an associate general counsel at Facebook, said in an e-mailed statement.

Danny Carter, the jailer, claims he was fired after he posted a picture of his boss’s opponent in the sheriff’s race on his Facebook page, along with a link to the contender’s website.

U.S. District Judge Raymond Jackson in Norfolk, Virginia, dismissed the suit in April 2012, rejecting the First Amendment claim. Two federal court decisions in 2011 that held constitutional protections extended to Facebook involved actual statements posted on a user’s page, Jackson said.

The ruling was criticized by constitutional lawyers who said the judge ignored the fact that other protected speech on the Internet, such as uploading a video or donating money to a campaign, are done with one click of a button.

‘Good Enough’

“You are expressing the relevance of a message and that’s good enough,” Eugene Volokh, a law professor at the University of California at Los Angeles, said in an interview in May.

In today’s ruling, the court said Carter’s use of the “Like” button was both “pure speech” and symbolic expression.

“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,” Traxler said.

In the context of a political campaign page on Facebook, “the meaning that the user approves of the candidacy whose page is being liked is unmistakable,” the judge wrote.

The appeals court, which unanimously ruled that liking something on Facebook was protected speech, reinstated the claims of Carter and two others out of six who sued. Two of the judges ruled that the sheriff was immune from monetary damages because of a separate legal issue in the case.

‘Qualified Immunity’

“Sheriff Roberts is gratified that the court agreed that he was entitled to qualified immunity because the law was not clear with regard to whether sheriffs could demand political loyalty from their deputies,” Jeff Rosen, a lawyer for Roberts, said in a statement.

During arguments in May, Rosen said that “liking” a Facebook page means many things and was too obscure an act to warrant protection. People may “like” Target’s page to get a coupon or because they’re curious about something that can only be seen by hitting the feature, he said.

“We do not believe the court’s decision on the Facebook issue will impact the final outcome of the case,” Rosen said in the statement.

The case is Bland v. Roberts, 12-1671, U.S. Court of Appeals for the Fourth Circuit (Richmond).

To contact the reporter on this story: Tom Schoenberg in Washington at tschoenberg@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.

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