Facebook ‘Likes’ Protected by First Amendment

One of the challenges of constitutional law is to apply broad principles like free speech in a constantly evolving technological reality. A federal appeals court has now ruled that clicking the “like” button on Facebook is a protected form of (in this case) political speech:

“Liking” something on Facebook is a form of speech protected by the First Amendment, a federal appeals court ruled Wednesday, reviving a closely watched case over the extent to which the Constitution shields what we do online.

In doing so, the Fourth U.S. Circuit Court of Appeals sided with a former deputy sheriff in Hampton, Va., who said he was sacked for “liking” the Facebook page of a man running against his boss for city sheriff.

“Liking” the campaign page, the court said, was the “Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

The Richmond-based appeals court reversed a ruling by a federal district judge, Raymond A. Jackson, who threw out the lawsuit last year on the grounds that a Facebook “like” was “insufficient speech to merit constitutional protection.”…

Chief Judge William B. Traxler Jr., writing for a three-judge panel of the Fourth Circuit, said no such distinction exists.

“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,” wrote Judge Traxler for the court, which ruled unanimously on the Facebook issue.

This is exactly the correct ruling. It is the expression of an opinion that is protected, not the mode by which one expresses it.

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  • zero6ix

    Boy, I’m sure glad we’ve solved literally every other problem that exists in America. Now we can get down to brass tacks about liking something on facebook. Its totally a gray area that needs clarification.

  • Michael Heath

    Ed’s source reports:

    The Richmond-based appeals court reversed a ruling by a federal district judge, Raymond A. Jackson, who threw out the lawsuit last year on the grounds that a Facebook “like” was “insufficient speech to merit constitutional protection.”…

    Somebody loses their job due to their speech and that’s too trivial to merit protection?

  • dogmeat


    Actually this case was about free speech rights and employment rights. Both rather important issues.

  • zenlike

    zero6ix, you might be giving a ‘sarcastic’ comment on how this is such an important point to be clarified, but in fact, it was, because some people (illegally) lost their jobs and livelihood over this ‘minor’ issue.

  • eric

    @1: the important problem here was a civil servant being fired for expressing a political opinion. And yeah, I’d view that as a pretty big problem.

  • lofgren

    2-5 have already pointed out the casual asininity of zero6ix’s comment, but I would like to point out a fundamental assumption embedded in the comment; one which I have encountered several times before. There seems to be a common perception that judges just sit around mulling over Constitutional issues and occasionally issue opinions out of the ether, totally without prompting (by, say, an actual perceived injustice that a plaintiff or defendant has asserted). Has anybody else encountered this misconception? I’ve even heard Bill o’Reilly make arguments of this nature, saying that judges are wasting their time by issuing certain rulings when they should have better things to do. If this belief is as common as it seems to me, what is its source? It’s as if judges are viewed as mystic hermits meditating on a distant mountaintop, occasionally feeding new proclamations about the nature of the universe down to the rabble below. Don’t people realize that judges work for a living?

  • zero6ix

    It was hard to make a clear statement with my foot in my mouth. Apologies all around. My intent was to voice that this was fairly clear cut example of protected speech, and my comment was used to point out the sheer ridiculousness that it had to go to trial to point that out.

  • This issue will not TRULY be settled until Scalia tells us what the founders had in mind when they passed the 1st Amendment.

  • jnorris

    This is why making law enforcement political is wrong. We should not be electing sheriffs but hiring them as civil servants.

  • That’s easy, theschwa, the founding fathers never had any plans to cover Facebook under the First Amendment, as Facebook did not exist at the time.

    They did, however, intend to cover fully automatic AK47s under the Second Amendment.