Facebook says ‘Likes’ are free speech in sheriff case

Free speech

Facebook is supporting the court appeal of a deputy sheriff who lost his job after he ‘Liked’ the Facebook campaign page of his boss’s rival. The case is helping to define the extent of free speech rights in the age of social media.

The Virginia man at center of the case, Daniel Ray Carter, clicked to “Like” the “Jim Adams for Hampton Sheriff” page in 2009. The incumbent sheriff learned of his subordinate’s “Like” for his opponent and fired Carter shortly after he won re-election.

Ordinarily, it is against the law to terminate employees for their political opinions. When Carter sued, however, a Virginia judge ruled in April that, unlike writing a message on Facebook, the act of clicking a “Like” did not amount to speech worthy of First Amendment protection.

Carter appealed the decision and this week Facebook filed to support him. In its brief, the social network says a “Like” is protected symbolic speech like a bumper sticker or a campaign lawn sign — both low-cost ways for citizens to express their political opinions.

The appeal will turn on the original judge’s conclusion that the “Like” was insignificant speech that did not involve “actual statements.” Facebook is countering this by pointing out that the “Like” appeared on Carter’s profile page and in the news feed of Carter’s friends. The evidence also showed that others in the sheriff’s office saw the “Like” and predicted that Carter would be “out of there” because of it.

Carter is likely to prevail. US courts have long protected a wide range of symbolic speech such as arm bands and flag burning. Recently, a federal judge expressed support for a vice-principal who was fired for having a symbolic hot dog cook-out in support of poorer students at the school.

Prominent First Amendment scholars like UCLA’s Eugene Volokh have also supported Carter’s position, saying a “Like” clearly is speech.

The Facebook Like case is just the latest in a series of decisions in which courts have struggled to apply Constitutional rights like free speech and privacy in the context of social media. In another high-profile case, Twitter is appealing a New York judges’ ruling that an Occupy Wall Street protestor has no constitutional rights in his tweets.

Update: The American Civil Liberties Union has also filed a brief to support Carter.

“The Supreme Court has made clear that the First Amendment protects everyone’s right to express their thoughts and opinions in whatever form they choose to do so, whether it’s speaking on a street corner, holding up a sign, or pressing a button on Facebook to say that you ‘Like’ something,” said ACLU attorney Aden Fine.

Here is Facebook’s brief in support of Likes as free speech:

Facebook 1st Amendment

(Image by Vince Clements via Shutterstock)

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