What’s Not To “Like” – Appeals Court Rules That “Liking” On Facebook Qualifies As Constitutionally Protected Speech

Thursday, October 17, 2013 - 12:46
Allison S. Brehm

Allison S. Brehm
The Scope And Influence Of Social Media Is Expanding Exponentially

Social media is rapidly growing and changing, transforming the way people communicate, network and share information.  Currently, Facebook boasts nearly 1 billion members, followed by a steady stream of other social media sites gaining greater popularity by the minute, including Twitter, Line, Snapchat, Instagram, Pinterest, Reddit and more. These sites offer instantaneous connection to vast social networks, with opportunities to build relationships, stay informed, share ideas, spread content, raise money, attract followers, and advertise products, among a variety of other opportunities. Along with these opportunities comes a concomitant risk of injury and exposure to liability, as the case may be, for the myriad activities taking place on social media every day. As a result, courts are evaluating more and more the nature of social media. One of the most recent, notable examples is that the United States Court of Appeals for the Fourth Circuit elevated “liking” on Facebook to constitutionally protected speech, further solidifying the significant and rapidly evolving influence of social media on First Amendment jurisprudence.

Appeals Court Decision “Liked” By Social Media Users

A court recently ruled for the first time that “liking” on Facebook qualifies as protected speech covered by the First Amendment, such that an unlawful termination case brought against a Virginia sheriff by his former employees/deputies could proceed.  In Bland v. Roberts, the United States Court of Appeals for the Fourth Circuit reversed a 2012 federal district court decision by holding that one swift keystroke – pressing the iconic “like” button – conveys speech that is subject to protection under the First Amendment.  (Bland v. Roberts, 2013 U.S. App. LEXIS 19268, at *41-51 (4th Cir. Sept. 18, 2013).)  For Facebook users, the decision of the district court appeared undoubtedly incorrect.  Users of social media expect that “liking” a page or post qualifies as speech insofar as it conveys an unequivocal message of support for the thing “liked,” be it a particular cause, candidate, organization, or something completely mundane. 

The Fourth Circuit’s Rationale

Bland v. Roberts involved a section 1983 claim arising from alleged retaliation against plaintiffs for exercising their First Amendment rights. Plaintiff Daniel Ray Carter, Jr. and five other plaintiffs, all former employees of the Hampton Sheriff’s Office, expressed their support in a number of ways for Jim Adams, the opponent of plaintiffs’ then-boss, sheriff B.J. Roberts, who had served as sheriff for the prior 17 years.  (Id. at *2-5)  When Roberts was re-elected, he did not re-appoint plaintiffs.  (Id. at *5.)

Plaintiffs sued Roberts in federal court under 42 U.S.C. § 1983, which allows individuals to sue governmental actors to redress violations of federally protected rights, such as rights under the First Amendment. (Id. at *5.) Carter in particular alleged that Roberts violated Carter’s First Amendment rights when Roberts chose not to reappoint him because Carter had expressed support for Roberts’ opponent, Adams, by “liking” Adams’s Facebook campaign page, which read “Jim Adams for Hampton Sheriff.”  (Id. at *5, 41.)  (Additionally, Carter and the other plaintiffs had also alleged other violations of their First Amendment rights.  (Id. at *5-7.)) “Not only does the First Amendment protect freedom of speech, it also protects ‘the right to be free from retaliation by a public official for the exercise of that right.’”  (Id. at *7.) 

What Qualifies “Liking” As Protectable Speech?

A threshold question for Carter’s claim was whether “the conduct that [he] maintains precipitated his non-reappointment constituted speech at all.”  (Id. at *41.)  Specifically, does “liking” Adams’s campaign page on Facebook qualify as speech, such that it may be entitled to protection under the first Amendment?  In an amicus brief filed in the case, Facebook confirmed the incredible popularity of its social networking site by providing a variety of statistics, including the following information.  Facebook has nearly one billion members and more than three billion “likes” and comments posted daily.  (Id. at *43.)  The iconic “like” button, represented by a thumbs-up symbol accompanied by the text “like,” appears next to information on Facebook.  According to Facebook, “liking” something “is an easy way to let someone know that you enjoy it,” whatever that thing is.  (Id. at *43.)

From a technical perspective, when users “like” a Facebook page, three key actions take place. First, by making this selection, users are connecting to that particular page, which causes it to appear in the “liking” member’s timeline. Second, the “liking” member will appear on the “liked” page as a person who, in fact, likes that page. Third, the “liked” page will also be able to post content on the “liking” member’s news feed.  Basically, by clicking on the “like” button, a statement that the user “likes” something is promoted, published and shared. Thus, when Carter clicked the “like” button for Adams’s campaign page, the campaign page's name (with a hyperlink) and a photo of Adams were added to Carter’s Facebook profile, Carter’s name and his profile photo were added to the campaign page’s “People [Who] Like This” list, and an announcement that Carter liked the campaign page appeared in the news feeds of Carter’s Facebook friends (Id. at *43-44).

Based on events that “liking” the campaign page produced, the Fourth Circuit held that “Carter’s conduct qualifies as speech. 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.” (Id. at *45.) In this particular context, “liking” the campaign page unequivocally showed that the user (Carter) approves of the candidacy. Notably, the Fourth Circuit stated in no uncertain terms that the fact that one swift keystroke was used to convey the constitutionally protected speech did not undermine its treatment under the First Amendment: “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” (Id. at *45).

“Liking” Deemed Symbolic Expression As Well

The court not only held that “liking” was pure speech, but found it would be protected as symbolic expression as well.  In fact, the expression was the “Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech” entitled to constitutional protection. (Id. at *46.)  “The distribution of the universally understood ‘thumbs up’ symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy.”  (Id. at *45.)  The court reasoned that “[j]ust as Carter’s placing an ‘Adams for Sheriff’ sign in his front yard would have conveyed to those passing his home that he supported Adams’s campaign, Carter’s liking Adams’s campaign page conveyed that message to those viewing his profile or the Campaign Page.”  (Id. at *46.) 

Indeed, the Supreme Court has held that a person engages in constitutionally protected expressive conduct when there is (1) an intent to convey a particular message, and (2) in context, the likelihood was great that the message would be understood by those who viewed it, both of which were satisfied here. (Id. at *46.) The Bland court held that Carter had presented sufficient evidence at the summary judgment stage to satisfy both of these requirements. Thus, the court held that Carter had presented a genuine issue of material fact as to whether his Facebook support for Adams was a substantial factor in Roberts’ decision not to reappoint Carter to his position in the Sheriff’s office.

The Bland v. Roberts decision underscores that social media, today’s modern town square, is a vehicle through which speech – including constitutionally protected speech – may be communicated. With the incredible ease and reach of social media, it is no surprise that lawsuits flowing from this type of speech abound. The lawsuits have taken many forms, from section 1983 claims, as seen in Bland v. Roberts and another recent case, in which a high school student successfully invoked the same statute on the grounds that his First Amendment rights were violated when he was suspended from school after he created a fake MySpace “profile” of his principal (Layshock v. Hermitage School District, 650 F.3d 205 (3rd Cir. 2011)), as well as a host of other claims.  While the speech in Bland and Layshock was deemed constitutionally protected speech, such that plaintiffs could rely on that speech to state claims for relief under section 1983, oftentimes speech on social media is not constitutionally protected but nonetheless forms the basis of lawsuits claiming injury from that speech. 

Not All Speech On Social Media Is Constitutionally Protected

Clearly, not all online speech merits constitutional protection.  Social media is also a fertile ground for defamation claims. A college student who had been defamed by a Michigan assistant attorney general obtained a $4.5 million jury award arising from the attorney’ general’s defamatory comments on his blog. (Armstrong v. Shirvell, 2013, U.S. Dist. LEXIS 129526 (E.D. Mich. Sept. 11, 2013).)  Another defamation plaintiff claimed injury by a three-line tweet, but did not have the same success, as the California Court of Appeal deemed the tweet nonactionable opinion, although other claims survived.  (Getfugu, Inc. v. Patton Boggs LLP, 2013 Cal. App. LEXIS 789. (Oct. 3, 2013).)  Relatedly, courts continue to grapple with the extent to which certain websites qualify for protection under the Communications Decency Act, thus immunizing those websites from defamation and other claims.  (See, e.g., Jones v. Dirty World Entm’t Recordings, LLC, 2013 U.S. Dist. LEXIS 113031 (E.D. Ky. Aug. 12, 2013.).)

Online speech also brings the possibility of other forms of alleged injury. Last month, the Ohio Court of Appeals upheld an order finding a teenager a delinquent based on the offense of “menacing” and “inducing panic,” after the teenager posted alarming comments on Facebook following the tragedy in Newtown, Connecticut. (In the Matter of P.T., No. CA2013-02-006A, 2013 Ohio App. LEXIS 4043 (Sept. 9, 2013).)  Also, the United States Court of Appeals for the Third Circuit upheld a conviction against a man arising from threatening Facebook posts against his wife and others. (U.S. v. Elonis, 2013 U.S. App. LEXIS 19316. (3rd Cir. Sept. 19, 2013).)  On October 15, 2013, two young girls were reportedly charged with stalking, a third-degree felony, in the death of a 12-year old girl who committed suicide after being bullied online through social media messaging and photo-sharing applications.  (New York Times (Oct. 16, 2013).)

Adapting Jurisprudence To Social Media

The Fourth Circuit’s Bland v. Roberts decision is notable not only because it shows how jurisprudence is adapting to online activity, but additionally how particular conduct on social media can give rise to myriad claims. However, the reasoning of the district court in Bland v. Roberts highlights that at least some judges may not understand or fail to make an active effort to understand the practical applications of social media. 

Social media and cyber activism have played instrumental roles in publicizing, organizing and accelerating the many global protests, uprisings and political revolutions that have occurred over the past five years. With all the attention given to the importance and effectiveness of social media communications within the context of enormous world events, concluding that a Facebook “like” is speech is not a stretch. There should no longer be any ambiguity over the intrinsic nature of social media, which is to connect, communicate, express, support, share.      

Given the incredible popularity and explosive growth of social media, lawsuits arising from the use of social media will only continue. As we see from the Fourth Circuit’s decision in Bland v. Roberts and other recent lawsuits arising from speech on social media, judicial awareness and understanding of new media is growing, resulting in First Amendment jurisprudence that is adapting to today’s most popular communications tools.

Allison Brehm is a Partner in the national law firm of Kelley Drye & Warren LLP with significant experience litigating First Amendment cases. She can be reached at (310) 712-6105.

Please email the author at abrehm@kelleydrye.com with questions about this article.