Facebook “Likes” Not Protected Speech, Says Virginia Court

Think twice before clicking that Facebook “like” button. You may think you’re expressing a constitutionally protected right to express support for a political candidate, for which you cannot be terminated, but Judge Raymond A. Jackson of the Eastern District of Virginia recently ruled that merely “liking” a candidate on Facebook is not sufficiently substantive to warrant First Amendment protection. Expect this ruling to get appealed.

Sherriff B.J. Roberts of the Hampton Sherriff’s office was up for re-election when he learned that several of his employees were actively supporting one of his opponents, Jim Adams. The employees alleged that Sherriff Roberts learned of their support of Adams because they “liked” Adams’ Facebook page. They also attended a cookout with Adams and told others of their support, but there was no evidence that the Sherriff was aware of these activities. One employee sported a pro-Adams bumper sticker on his car and used choice words to describe the Sherriff’s campaign literature in speaking with a colleague at the election booth.

After winning re-election, Sherriff Roberts did not retain the employees. Sherriff Roberts claimed various benign reasons for the firings, including a reduction in force and unsatisfactory work performance. The employees sued Sherriff Roberts alleging that the firings were in retaliation for exercising their right to free speech and that the Sherriff Like Button.jpghad violated their right to free political association. Sherriff Roberts argued that plaintiffs had not alleged protected speech or political association and that he was entitled to qualified and sovereign immunity even if plaintiffs’ speech was protected.

To state a claim under the First Amendment for retaliatory discharge, public employees must prove that they were terminated on the basis of “speech” on a matter of public concern. Here, the court concluded that merely “liking” a Facebook page is insufficient speech to merit constitutional protection. The court examined holdings in which constitutional speech protection extended to Facebook posts, and it noted that in those cases, actual statements existed within the record. Conversely, it found, simply clicking the “like” button on a Facebook page is not the kind of substantive statement that warrants constitutional protection. Likewise, the court found that the presence of a bumper sticker supporting Adams did not constitute protected speech without any evidence that the Sherriff was aware of the bumper sticker. The court also found that statements describing the Sherriff’s campaign literature, regardless of expletives, did not constitute protected speech because they did not address a matter of public concern but were instead descriptive of personal opinion.

The court also held that even if the plaintiffs’ First Amendment arguments had merit, their claims would have failed anyway because the Sheriff was entitled to both qualified and sovereign immunity.

As several commentators have already pointed out, this ruling seems contrary to Supreme Court precedent affording First Amendment protection to such acts as saluting a flag, refusing to salute, and wearing an armband. But I disagree with Professor Eugene Volokh, who writes that “the whole point” of the “like” button is to convey “a message of support for the thing you’re liking.” When you “like” a Facebook page, you get updates from the page you liked in your news feed. Therefore, “liking” a person’s Facebook page may be intended as nothing more than a means of monitoring that person’s public statements; it doesn’t necessarily mean you like or support those statements. It will be interesting to see how the Fourth Circuit deals with this.

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