In 2009, Daniel Ray Carter, Jr., a sheriff’s deputy from Hampton, Virginia, “liked” a Facebook page supporting “Jim Adams for Hampton Sheriff.”  Unfortunately for Carter, Adams lost the election and Sheriff B.J. Roberts won re-election.  After beating out Adams in the election, Roberts declined to retain Carter and several other employees who had supported Adams during the election.

Carter and the other employees sued Roberts alleging that Roberts had violated their First Amendment rights of speech and association by not retaining them in retaliation of their support of Adams.  In April 2012, Judge Raymond A. Jackson of the Eastern District of Virginia granted summary judgment to Roberts.

Judge Jackson applied the Fourth Circuit, three-prong McVey v. Stacy test and noted that the “test necessarily requires that speech exists before an evaluation of the remaining prongs can occur.”  Ultimately, Judge Jackson concluded that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection” and that a Facebook “like” is not an actual, substantive statement protected by the First Amendment.  Finding that no speech had occurred in Carter’s case, an evaluation under the remaining McVey prongs was unnecessary.

Carter has since appealed the decision to the Fourth Circuit.

In an online article for the First Amendment Center, First Amendment scholar David Hudson criticized Judge Jackson’s decision, noting that the decision “seemed to downplay the reality that [Carter] had engaged in pure political speech”–“the core type of speech the First Amendment was designed to protect.”

Last week, both the ACLU and Facebook filed amicus briefs in the case arguing that Facebook “likes” should be considered constitutionally protected speech.  The Facebook brief compared “likes” such as Carter’s to “the 21st-century equivalent of a front-yard campaign sign” and suggested that the district court decision was “based on an apparent misunderstanding of the way Facebook works . . . .”

In a Washington Post article, UCLA Law Professor Eugene Volokh said that the Fourth Circuit is likely to reverse the district court.  However, “[i]f the 4th Circuit agrees with the judge–that liking is not protected speech–that would suggest an overturning of precedents.”

— Kathleen Meyers

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2 Responses to Facebook Likes and the First Amendment

  1. Erin Reimer says:

    While I certainly believe the slippery slope argument discussed in the comment above raises some valid points that will need to be addressed in the future, I have a hard time accepting that a Facebook “like” is not a protectable form of speech. Pressing a button that conveys that the user “likes” a particular person, business, or even idea is equivalent to the person expressly stating that he prefers that person, business, or idea. If Daniel Ray Carter, Jr. had orally stated, “I like Jim Adams for Hampton Sheriff,” I do not believe anyone could legitimately argue the statement was not protectable speech. It seems silly and arbitrary to distinguish between pressing a button that says, “I like something,” versus writing out the actual words.

  2. Anonymous says:

    Good post, Katharine. This article gets to the core issue of what is speech and how do our online lives/profiles factor into our conception of speech. In this instance, I tend to agree that clicking on “like” is a form of political speech, a way of showing support much like flyering for a candidate. But if it is, where does this form of speech end? Is it speech to simply click on a Youtube video of a campaign and join the ranks of the millions who have viewed it? Or does there need to be some personal identifier? Is your personal laptops ISP enough? And the transition to how to remove that political speech (ie, can Facebook refuse to permit certain profiles to persist despite being political and having been “liked”) is even more difficult. In the mean time, in order to avoid litigation, perhaps it is better to have lived and not “liked”, than ever to have “liked” at all.