What a great constitutional law question facing the Fourth Circuit!
A deputy sheriff in a Virginia lost his job after "liking" the Facebook page of his boss's challenger in the 2009 election for sheriff. The deputy (and others fired after the sheriff won re-election) sued, but a federal judge granted summary judgment in favor of the sheriff, saying that "merely 'liking' a Facebook page is insufficient speech to merit constitutional protection." The plaintiffs appealed, and the case now awaits consideration by the Fourth Circuit Court of Appeals. On August 6, 2012, Facebook and the American Civil Liberties Union filed friend-of-the-court briefs to support the plaintiff-appellants' appeal -- arguing the district court got it all wrong.
Facebook poignantly argues in its brief:
The ACLU also persuasively argues in its brief:When Carter clicked the Like button on the Facebook Page entitled “Jim Adams for Hampton Sheriff,” the words “Jim Adams for Hampton Sheriff” and a photo of Adams appeared on Carter’s Facebook Profile in a list of Pages Carter had Liked – the 21st-century equivalent of a front-yard campaign sign. In addition, an announcement that Carter likes the campaign’s Page was shared with Carter’s Friends, and Carter’s name and photo appeared on the campaign’s Page in a list of people who Liked the Page. If Carter had stood on a street corner and announced, “I like Jim Adams for Hampton Sheriff,” there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection.
With “one click of a button,” an Internet user can upload or view a video, donate money to a campaign, forward an email, sign a petition, send a pre-written letter to a politician, or do a myriad of other indisputably expressive activities. The ease of these actions does not negate their expressive nature. . . . That many people today choose to convey what they like or which political candidates they support by “Liking” a Web page rather than by writing the actual words, “I like this Web page” or “I like this candidate,” is immaterial. Whether someone presses a “Like” button to express those thoughts or presses the buttons on a keyboard to write out those words, the end result is the same: one is telling the world about one’s personal beliefs, interests, and opinions. That is exactly what the First Amendment protects, however that information is conveyed.I'll be eager to see how the Fourth Circuit comes down on this one. I think the amici curiae briefs lay out compelling arguments, and I agree a Facebook "like" should be just as protected as other forms of speech. Come on, folks. With 955 million monthly active users at the end of June 2012, and an average of 552 million daily active users in June 2012, how can any statement via Facebook be considered somehow less significant than a statement made through some other medium?