Update: Facebook Likes Are Indeed Protected First Amendment Speech

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We’ve posted a couple of times before about the big “are Facebook Likes protected by the First Amendment?” case. As we wrote in August of 2012:

Some employees of a local sheriff in Virginia were fired after they liked his opponent’s Facebook page. They sued, claiming that their actions should be considered protected speech under the First Amendment, and a U.S. district judge disagreed, concluding that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”

The six fired employees appealed to the Fourth Circuit, with support from the ACLU and Facebook itself, and, earlier this week, they prevailed. Early on in its 81-page opinion, the court observes that:

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.” Suarez Corp. Indus. v. McGraw, 202F.3d 676, 685 (4th Cir. 2000).

In reversing the district court’s opinion, the Fourth Circuit utilizes a simple but effective analogy:

[L]iking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.

Unlike the lower court, the Fourth Circuit saw it as irrelevant that this form of protected speech could take place within “a single mouse click” as opposed to “several individual key strokes”.

So now, like written posts on Facebook, likes are also protected by the First Amendment, and it feels like a step in the right direction.

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