“Liking” a Facebook Page Is Presumptively Protected Speech

So holds today’s Bland v. Roberts (4th Cir. Sept. 18, 2013), I think correctly.

The trial court had held that “[s]imply liking a Facebook page … is not the kind of substantive statement that has previously warranted constitutional protection,” but the court of appeals disagreed:

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.

Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. 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. See Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam) (holding that person engaged in expressive conduct when there was “[a]n intent to convey a particularized message …, and in the surrounding
circumstances the likelihood was great that the message would be understood by those who viewed it”).

In sum, liking 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. Just 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. In fact, it is hardly surprising that the record reflects that this is exactly how Carter’s action was understood.

I say this is “presumptively protected speech,” since in the context in which arose — speech by a government employee — the government as employer may sometimes discipline employees based on their speech. But even if the government may sometimes restricting Facebook “likes” this way, the Fourth Circuit decision rejects the argument that Facebook “likes” are just too empty to be covered by the First Amendment at all.