Fourth Circuit “Likes” Facebook’s First Amendment Argument

Published On September 19, 2013 | By Dan Sachs | General, Litigation, Privacy
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LIKEThe Fourth Circuit has held that Facebook “Likes” are constitutionally protected speech, overruling a federal district court in North Carolina.  The case could have implications for other plugin-driven “social” features of websites as well as on privacy laws that impose burdens on the use of such features.

In the case, Bland v. Roberts, No. 12-1671 (4th Cir. Sept. 18, 2013), several sheriff’s department employees challenged the termination of their employment.  One former employee alleged that he was terminated because he “liked” the campaign page of an opposing candidate for sheriff on Facebook.  The district court granted summary judgment for the sheriff, finding that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”

On appeal, the Fourth Circuit took another look at the “like” function and reached the opposite result.  The court noted that when the employee clicked “Like” on the candidate’s page, the name of the campaign page and a photo of the candidate were added to the employee’s profile page, along with a link to the campaign page.  In addition, the employee’s friends received news feed notifications that the employee had “Liked” the page.  The employee’s name and profile picture also appeared on the campaign page in the list of people who “Like” the page.

Based on the “Like” functionality, the court concluded that “liking” the campaign page was clearly speech.  According to the court, “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.”  The court concluded that the “Like” was both “pure speech” and symbolic speech, “the Internet equivalent of displaying a political sign in one’s front yard,” and thus protected by the First Amendment.

While the “Like” button may be the most ubiquitous plugin-driven “social” functionality in today’s online ecosystem, it is far from the only one.  As such, this decision suggests that the users—and providers—of other social features can expect some degree of First Amendment protection for their activities.  In addition, the decision could foretell future First Amendment challenges to privacy laws that burden or restrict users’ ability to use social plugins or similar features for expressive purposes.

About The Author

Dan Sachs, ZwillGen’s inaugural Fellow, assists ZwillGen attorneys on a broad range of matters, including litigation, investigations, product counseling, regulatory compliance, and policy. Prior to joining the firm, Dan worked at Facebook, where he assisted the Chief Privacy Officer for Policy in responding to federal, state, and international policy developments, engaging with regulators and stakeholders, and advising business units on privacy issues. During law school, Dan was a member of the George Washington Law Review and served as a research assistant to Professor Jeffrey Rosen, focusing on U.S. and international consumer privacy and surveillance issues. He was a legal intern with ZwillGen in the summer of 2012. Dan also worked as a legal intern with the U.S. Attorney’s Office for the District of Columbia.