RICHMOND, Va. (TheBlaze/AP) — Wipe your brow -- you can now click "like" on Facebook knowing it is considered constitutionally protected free speech, according to a ruling by federal appeals court.
The 4th U.S. Circuit Court of Appeals in Richmond reversed a lower court ruling that said merely "liking" a Facebook page was insufficient speech to merit constitutional protection.
A thumbs up or "Like" icon at the Facebook main campus in Menlo Park, California, May 15, 2012. An appeals court recently reversed a lower courts ruling, saying that clicking "like" on Facebook is in fact an action protected under freedom of speech. (Photo: ROBYN BECK/AFP/GettyImages)
Exactly what a "like" means — if anything — played a part in a Virginia case involving six people who say Hampton Sheriff B.J. Roberts fired them for supporting an opponent in his 2009 re-election bid, which he won. The workers sued, saying their First Amendment rights were violated.
Roberts said some of the workers were let go because he wanted to replace them with sworn deputies while others were fired because of poor performance or his belief that their actions "hindered the harmony and efficiency of the office." One of those workers, Daniel Ray Carter, had "liked" the Facebook page of Roberts' opponent, Jim Adams.
U.S. District Judge Raymond Jackson in Norfolk had ruled in April 2012 that while public employees are allowed to speak as citizens on matters of public concern, clicking the "like" button does not amount to expressive speech. In other words, it's not the same as actually writing out a message and posting it on the site.
Jackson acknowledged that other courts have ruled that Facebook posts are constitutionally protected speech, but he said in those cases there were "actual statements." Simply clicking a button is much different and doesn't warrant First Amendment protection, he wrote. In his ruling, Jackson acknowledged the need to weigh whether the employee's speech was a substantial factor in being fired. But the judge wrote that the point is moot if "liking" something isn't constitutionally protected speech.
The three-judge appeals court panel disagreed, ruling that "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 case was sent back to the lower court.
Facebook and the American Civil Liberties Union, which filed friend of court briefs in the case, applauded Wednesday's ruling.
"This ruling rightly recognizes that the First Amendment protects free speech regardless of the venue, whether a sentiment is expressed in the physical world or online," Ben Wizner, director of the ACLU Speech, Privacy & Technology Project, said in a written statement. "The Constitution doesn't distinguish between 'liking' a candidate on Facebook and supporting him in a town meeting or public rally."
Facebook's Associate General Counsel, Pankaj Venugopal, emailed a statement to the Wall Street Journal praising the court's reversal.
“We are pleased the court recognized that a Facebook ‘Like’ is protected by the First Amendment,” he told WSJ.
An attorney representing Roberts, the sheriff, did not immediately return a phone message seeking comment, nor did an attorney representing the employees.
"It's not a blank check to go liking horrendous things on Facebook with zero consequences, but it's definitely a step in bringing online rights in line with real-world ones," Eric Limer wrote on the tech site Gizmodo.