Facebook ‘Like’ Is Protected Speech

B.J. Roberts is the Sheriff of the City of Hampton, Virginia. The Hampton City Police Department has primary responsibility for law enforcement in Hampton. However, the Sheriff’s Office maintains all city correctional facilities, secures the city’s courts, and serves civil and criminal warrants.

Roberts was up for re-election in November 2009, having served as Sheriff for the prior 17 years. Jim Adams announced in early 2009 that he would run against Roberts. Adams had worked in the Sheriff’s Office for 16 years and had become the third most senior officer, with a rank of lieutenant colonel, when he resigned in January 2009 to run.

It was alleged Roberts used his office and the resources that he controlled, including his employees’ manpower, to further his own re-election efforts. His senior staff often recruited Sheriff’s Office employees to assist in these efforts. For example, he used his employees to work at his annual barbeque/golf tournament political fundraiser, and his subordinates pressured employees to sell and buy tickets to his fundraising events.

The Sheriff won reelection in November 2009. He subsequently reappointed 147 of his 159 full-time employees. A number of the non-reappointed employees sued, claiming they were the victims of retaliation for their support of Adams in the election. A key issue in the case was whether the activity of some of the employees in “liking” Adams’s campaign page on Facebook constituted protected speech.

The federal Fourth Circuit Court of Appeals found that “liking” a Facebook page could be protected speech. The Court held that “once one understands the nature of what the employees did by liking the Campaign Page, it becomes apparent that their conduct qualifies as speech. 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. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

“Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. The distribution of the universally understood ‘thumbs up’ symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy. A person engages in expressive conduct when there is an intent to convey a particularized message, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.

“In sum, 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. In this way, 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 Court remanded the case to the lower court for a trial on the question of whether the employees were, in fact, fired for “liking” Adams’s Facebook page.

Bland v. Roberts, 2013 WL 5228033 (4th Cir. 2013).