The First Amendment Protects Facebook “Likes” – Bland v. Roberts

[Post by Venkat Balasubramani, with comments by Eric]

Bland v. Roberts, No. 12-1671 (4th Cir. Sept. 18, 2013).

Plaintiffs were a group of employees of the Sheriff’s department, who brought First Amendment claims against the Sheriff. They alleged they were fired from their jobs due to their political affiliations and for supporting the Sheriff’s opponent for re-election. In particular, two of the plaintiffs had “liked” the Facebook page of the Sheriff’s opponent (one of them had posted a comment to the opponent’s Facebook page). Several other plaintiffs had supported the opponent in other ways as well, such as by attending a cookout event for the opponent, placing a bumper sticker supporting the opponent, and declining to provide assistance to the incumbent Sheriff’s political campaign.

The district court granted summary judgment against the plaintiffs, saying their speech activities and affiliations were not the cause of their dismissal. According to the trial court, the Sheriff was not necessarily aware of many of plaintiffs’ activities, and the one act that the Sheriff was clearly aware of and referenced—liking the opponent’s Facebook page—was not speech at all. (Here’s our post on the district court’s ruling: “Facebook “likes” aren’t speech protected by the First Amendment, rules judge.”) Plaintiffs appealed. Facebook and the ACLU of North Carolina submitted amicus briefs.

The Fourth Circuit reverses on the First Amendment issue, holding that there was sufficient evidence to find that the Sheriff was aware of plaintiffs’ activities and allegiances. The court also concludes that liking someone’s Facebook page is speech and therefore implicates plaintiffs’ First Amendment rights:

On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. 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.

Indeed, the court analogizes a Facebook like in the context of a political campaign to:

the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.

The court also notes that in addition to conveying approval, the act of liking a page itself results in an affirmative statement made by a Facebook user to his or her friends. Thus, choosing to “like” something on Facebook produces speech.

Unfortunately for plaintiffs, a majority of the court says that the Sheriff’s decision is insulated by qualified immunity. The law was not clearly established at the time of the dismissal that sheriff’s department deputies in North Carolina could not be fired for political allegiances. An earlier Fourth Circuit decision had sent “mixed signals” on whether a sheriff could properly choose to reappoint sworn deputies for political reasons, and two of the three judges say that the Sheriff was entitled to rely on this decision and therefore could not be sued for damages. One judge dissented on this point and said that there was a factual dispute as to whether the deputies were truly policy-making employees. In the dissenting judge’s view, the key question was the nature of the duties of the employee and not all Sheriff’s department deputies were necessarily subject to the exception that allowed the Sheriff to appoint or fire the for political reasons or based on their speech.

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As we speculated in our initial post, it’s possible that the trial court didn’t appreciate the practical effects of a “like.” In any event, the appeals court comes to the right conclusion on the Facebook like question. This is nice to see.

What does this mean for you? If are an employee? Not much, necessarily. NLRB envelope-pushing aside, private employees can, for the most part, be fired for saying things that their employer disagrees with or that is contrary to the interests of the employer. (State law varies and some state laws prohibit employers from terminating employees due to exercise of their FIrst Amendment rights.) Nevertheless, if you are a public employee, it’s good to know that your Facebook interactions can’t necessarily be used as a basis for dismissal. As a member of the general public, it’s also nice to know that the government can’t easily sanction you for expressing your preferences on Facebook. (We’ve blogged often about online threat cases; those cases remain a category of online speech where courts seem willing to tolerate incursions into the First Amendment realm of protected speech. See, e.g., “High Schooler’s Facebook Post Can Constitute the Crime of Menacing – In re P.T.“)

The big question is what the implications are to Facebook of this type of speech being protected. Facebook raised (obliquely) a First Amendment argument in opposition to the plaintiffs’ claims in Fraley v. Facebook. (See “Facebook “Sponsored Stories” Publicity Rights Lawsuit Survives Motion to Dismiss–Fraley v. Facebook”.) While this argument was not successful, look for more arguments in this vein in the future.

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Eric’s Comments: This is how the system is supposed to work. The district judge made an obvious error, but fortunately the appellate court fixed the error on appeal–and did so in a decisive way that leaves no ambiguity about the legal implications of using Facebook’s “like” functionality. Let’s hear it for multiple levels of judicial review! Sadly, we see too many bad Internet Law decisions at the district court level that don’t get appealed. I’m glad this one did.

While I’m glad the First Amendment protected my ability to “like” on Facebook, I still don’t plan to use Facebook’s functionality very often to become fans of companies or people. Facebook has so overburdened the meaning of the simple act of “liking” a company or a person–creating over a half-dozen consequences when in some cases I only want one or a subset of those consequences–that it’s just too heavy for me. So I can’t say this decision will change my behavior until Facebook cleans up the technological mess it has made (which, given Facebook’s past practices, is almost certainly not the direction Facebook will go). This is one of the many reasons why I prefer Twitter, where I enthusiastically follow companies and people without worrying about the extra baggage that would bring on Facebook.

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Related posts:

Facebook “Likes” Aren’t Speech Protected By the First Amendment–Bland v. Roberts

Facebook Entry and Blog Post May Support Retaliation Claim – Stewart v. CUS Nashville

Judges’ Facebook Friendships Insufficient for Recusal .. Again

“High Schooler’s Facebook Post Can Constitute the Crime of Menacing – In re P.T.“