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Facebook 'likes' are protected free speech, says court

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Mark Zuckerberg Facebook Stock
Mark Zuckerberg Facebook Stock

In 2009, Sheriff BJ Roberts was struggling for re-election. Adding insult to injury, when he went to his opponent's page on Facebook, he found that six of his deputies had "liked" the page, signing on to the campaign to remove him from office. After he won reelection, he held a grudge and fired all six men. Now courts are facing a sticky question: was it legal?

"The internet equivalent of displaying a political sign."

The question is whether Facebook likes qualify for free speech protection, and this morning, the court of appeals for the Fourth Circuit ruled that they do, overturning an earlier ruling which held that free speech required a more significant public act than clicking a button. The new ruling holds that Liking a page is the "Internet equivalent of displaying a political sign in one’s front yard," an activity which has been established to fall under free speech protection. As a result, Roberts' deputies are cleared to sue the sheriff for retaliating on the basis of protected speech. The court continued, "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."

At particular issue in the case is not the right to speech itself, but "the right to be free from retaliation by a public official for the exercise of that right," which previous rulings have established to be part of free speech protections. Once free speech protections have been established for a Facebook like, public officials are prohibited from retaliating against them, as Sheriff Roberts allegedly did.

It's the ruling that Facebook as a company had been pushing for from the start, establishing the activity on Facebook as equivalent to similar discourse in a town hall or in a newspaper. It's also likely to stand, as most circuit courts are in accordance with the court's logic, and the Supreme Court seems unlikely to take up the case. As Facebook lawyers had argued in an earlier phase of the trial, "if [Deputy] Carter had stood on a street corner and announced, 'I like Jim Adams for Hampton Sheriff,' there would be no dispute that his statement was constitutionally protected speech."