A federal appeals court ruled Wednesday that ‘liking’ something on Facebook is a form of protected free speech in a closely watched Virginia case that tested the limits of the First Amendment in the digital age.
The Fourth Circuit Court of Appeals in Richmond rejected a lower court’s opinion that clicking the ubiquitous “thumbs up” icon was not “actual speech,” an opinion that would have had wide-ranging implications for millions of Facebook users and other new forms of expression on the web if it had stood.
“[Liking] is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech,” the three judge panel wrote in their 81-page opinion.
The ruling grew out of a lawsuit brought by Hampton sheriff’s deputies, one of whom claimed he was fired for liking the campaign page of his boss’s opponent. Daniel Ray Carter, Jr. said the dismissal violated his First Amendment rights in the 2011 suit.
But U.S. District Court Judge Raymond A. Jackson issued a summary judgement against Carter in January 2012, saying ‘liking’ didn’t rise to the level of protected speech. Jackson said Carter needed to have made actual statements to make such a claim.
Facebook and the ACLU filed friend of the court briefs in the case, saying Jackson’s ruling would erode free speech rights. In the brief, Facebook said its users register more than 3 billion likes and comments every day.
Facebook users can like a range of content that appears on the social media site from articles to photos to organizations. If a user clicks the “thumbs up” icon, the content appears on his or her Facebook feed.
“The court properly recognized that in an era when so much of our communication takes place through social media liking a political Facebook page is an important means of political expression that deserves First Amendment expression,” said Rebecca Glenberg, the ACLU legal director for Virginia.