A Click is Worth a Thousand Words: Fourth Circuit Sees the Value of a "Like"

On Wednesday, the U.S. Court of Appeals for the Fourth Circuit issued its decision in Bland v. Roberts, a case that made waves last year when a district court judge ruled that a Facebook “like” was “insufficient speech to merit constitutional protection.” But never fear, Facebook fans: the expressive value of a “like” has been reaffirmed.

The case arose after six employees in the Sheriff’s Department of Hampton, Virginia, were terminated from their jobs, allegedly for supporting Sheriff B.J. Roberts’s opponent during the Sheriff’s 2009 re-election campaign.  This support took many forms, including a bumper sticker, a comment to a co-worker about the Sheriff’s campaign material, attending a campaign cookout for the Sheriff’s opponent, and, notably, the aforementioned Facebook “like.” The six employees filed suit in federal court for wrongful termination, and the Sheriff responded by denying that their termination was retaliatory, and arguing that even if it was he had the right to terminate them for disloyalty due to their positions of responsibility.

But he also made the curious claim that the various expressions of support at issue (including the "like") were not speech, e.g.:

Carter’s and McCoy’s action of simply adding their names to Adams’ Facebook page is not sufficient evidence of constitutionally protected expression. There is no “speech.”

Reply to Plaintiffs' Opposition to Defendant's Motion for Summary Judgment, p. 3. Even more surprisingly, a federal district court judge agreed:

[T]he Sheriff’s knowledge of the posts only becomes relevant if the Court finds the activity of liking a Facebook page to be constitutionally protected. It is the Court's conclusion that merely "liking" a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record. … No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter's posts from one click of a button on Adams' Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection.

Slip op., pp. 6-7.

However, on appeal the Fourth Circuit dug into the mechanics of a Facebook "like," and by doing so made clear that the district court’s focus on the simplicity of the act of “liking” disregards the amount of information communicated as a result of that act:

“Liking” on Facebook is a way for Facebook users to share information with each other.  … Here, Carter visited the Jim Adams’s campaign Facebook page (the “Campaign Page”), which was named “Jim Adams for Hampton Sheriff,” and he clicked the “like” button on the Campaign Page. When he did so, the Campaign Page’s name and a photo of Adams – which an Adams campaign representative had selected as the Page’s icon – were added to Carter’s profile, which all Facebook users could view. On Carter’s profile, the Campaign Page name served as a link to the Campaign Page. Carter’s clicking on the “like” button also caused an announcement that Carter liked the Campaign Page to appear in the news feeds of Carter’s friends. And it caused Carter’s name and his profile photo to be added to the Campaign Page’s “People [Who] Like This” list.

Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his 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.