BY: TATYANA SEGAL

“Liking” a political candidate, cause, or consumer product on a Facebook page should constitute protected speech under the First Amendment.  Interpreting the First Amendment’s “freedom of speech” clause, the Supreme Court has held that the ability to criticize government and government officers is “the central meaning of the First Amendment.” [1. New York Times v. Sullivan, 376 U.S. 254, 273 (1964).]  At the same time, the Court has declared that other forms of speech and expression are protected by the First Amendment.[2. Times, Inc. v. Hill, 385 U.S. 374, 388 (1967).]  Government employees should not get fired for “liking” or supporting a particular political candidate on a Facebook page. 

In April 2012, a court ruling by the Eastern District of Virginia in Bland v. Roberts stirred a lot of controversy.  In Bland, several state employees of the Sheriff’s Department in the City of Hampton, Virginia, were fired for “liking” a Facebook page of a political candidate who ran against the Sheriff in his bid for reelection.[3. Bland v. Roberts, 2012 WL 1428198 (E.D. Va. Apr. 24, 2012).]  The fired employees sued the Sheriff for violation of their First Amendment rights to speech.[4. Id.]   The district court granted summary judgment in favor of the defendant based on the ground that “liking” a Facebook page is “insufficient speech” and not “substantive” enough to guarantee constitutional protection. [5. Id. at *3-4.]  The court here applied a three-prong test laid out in McVey v. Stacy.[6. 157 F.3d 271 (4th Cir.1998). Id. at *2.]  Under the McVey test, to identify whether a public employee has stated a claim under the First Amendment for retaliatory discharge, we must determine (1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a personal matter of personal interest; (2) whether the employee’s interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public; and (3) whether the employee’s speech was a substantial factor in the employee’s termination decision.[7. Id. at 277-278.]  In Bland, after stating that “[t]he first prong of the McVey test necessarily require[d] that speech exist[ed] before an evaluation of the remaining prongs [could] occur,” the district court held that the plaintiffs did not “sufficiently” allege engaging in “expressive speech.” [8. Bland, 2012 WL 1428198, at *3.]

I believe the district court came to the erroneous conclusion in the instant case: “liking” someone on Facebook should warrant constitutional protections.  Clicking a “Like” button on a Facebook page involves an act of volition and judgment.  This button is not clicked to proceed to a next page or to navigate back as it happens when users almost automatically and habitually click “OK”, “Cancel”, and “Back” buttons in Internet browsers and Microsoft Windows applications.  Clicking a “Like” button requires deliberation and contemplation on part of a user: it is not a mere, unsubstantial act of browsing and navigation between pages on the Internet.  Clicking a “Like” button triggers a whole chain of events.  First, an announcement is posted on the user’s personal page proclaiming the fact that he likes, supports, endorses, or enjoys the “liked” page and his whole network of friends gets notified about his action.  Secondly, his click of a “Like” button comes with consequences.  Now, various advertisements will populate on the individual’s screens that are similar to the product he or she “liked.”  This demonstrates that hitting a “Like” button on Facebook is not a mere navigational feature on the Internet; but rather a firm and concrete statement of expression that should be protected by the Frist Amendment.  In fact, hitting a “Like” button is analogous to posting a flag outside someone’s door. [9. See Texas v . Johnson, 491 U.S. 397 (1989) (holding that a communicative conduct such as flag burning is constitutionally protected form of speech).]

Further, the law has not kept up with emerging Internet technologies and their constitutional consequences.  However, we are not left completely in the dark.  As we certainly have some guidance on this novel issue.  For instance, a recent holding in Fraley v. Facebook,[10. 830 F. Supp. 2d 785, 804-05 (N.D. Cal. 2011)] , provides a persuasive authority on this matter.  In Fraley, the Court held that “liking” things on Facebook is “newsworthy.”[11. Id.]  This decision stands contrary to the district court ruling in Bland where the court held that “liking” someone’s Facebook page is not an expressive speech or conduct.  Moreover, in a 2011 United States Supreme Court ruling, Justice Scalia stated that “[l]ike the protected books, plays, and movies.., video games communicate ideas – and even social messages.”[12. Brown v. Entm’t Merch. Ass’n, 131 S.Ct. 2729 (2011).]  We can view Justice Scalia’s quote on video games as dicta for the novel issue at hand.  Analogous to video games, some social networking activities, such as “liking” or supporting someone, should be viewed as vehicles that communicate ideas and social and political messages.  Thus, a social networking activity that conveys a message or statement such as “liking” a political candidate’s Facebook page should be protected under the First Amendment of the United States Constitution because it is just someone’s way of expressing his/her freedom of speech.

After an adverse ruling by the district court in Bland, the plaintiffs have filed an appeal.  Furthermore, in August 2012, two third-party organizations — Facebook, Inc. and ACLU — submitted their individual briefs as amicus curiae in support of the plaintiffs-appellants on the issue of whether or not “liking” someone on Facebook constituted a form of protected speech under the First Amendment.

Certainly Facebook, Inc. has a substantial business interest in this matter: it does not wish its users to be limited and restricted in their online activities.  This social networking giant also does not want to lose its advertising revenues it generates every time a user hits a “Like” button.  Contrary to the district court ruling, Facebook contends that every time a user hits a “Like” button, it becomes a “statement that will be viewed by a small group of Facebook friends or by a vast community of online users.”  [13. Brief for Facebook as Amici Curae Supporting Plaintiff-Appellant, Bland v. Roberts, 2012 WL 1428198 (2012) (No. 12-1671).]

A nationwide, nonprofit organization ACLU which “has been committed to protecting the freedoms guaranteed by the First Amendment” viewed the district court holding in Bland as an “unduly restrictive view of constitutionally protected speech.” [14. Brief for ACLU et al. as Amici Curae Supporting Plaintiffs-Appellants, Bland v. Roberts, 2012 WL 1428198 (2012) (No. 12-1671), 2012 WL 3191380.]  ACLU asserts that “’Liking’ a political candidate on Facebook – just like holding a campaign sign – is constitutionally protected speech.” [15. Id.]  ACLU further contends that hitting a “Like” button is “verbal expression, as well as symbolic expression.”[16. Id.]

Based on the little precedent we have on this novel issue involving social media and freedom of speech, I expect the Fourth Circuit will reverse the district court on this point and find that “liking” a political candidate, cause, or product should warrant the First Amendment protection.