Wednesday, September 19, 2012

Facebook “Like” not Constitutionally Protected Speech

In a recent Virginia District Court decision, the court held that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” Bland v. Roberts, 2012 U.S. Dist. LEXIS 57530 (E.D. Va. 2012).  The case in question came before the U.S. District Court of Eastern Virginia after B.J. Roberts of the Hampton, Virginia Sheriff's Department fired five employees following his successful reelection in 2009.  The fired employees filed an action alleging that they were fired in retaliation for their exercise of freedom of speech because before the election, they each "Liked" the Facebook campaign page of Roberts' opponent, Jim Adams.
Although holding a Facebook “Like” was unprotected speech, the court recognized cases in which Facebook posts were afforded constitutional protection.  In those cases, there were actual posts, either on a wall or in a comment, containing actual statements and therefore sufficient speech to be protected by the First Amendment.  The court, holding a “Like” as unprotected speech, determined that a “Like” is “not the kind of substantive statement that has previously warranted constitutional protection. The Court [would] not attempt to infer the actual content of [Plaintiffs’] posts from one click of a button on [a] Facebook page.” Bland v. Roberts, 2012 U.S. Dist. LEXIS 57530 (E.D. Va. 2012).