“Liking” a Facebook Page is not Constitutionally Protected Expression, Says US District Court

In Bland v. Roberts, No. 4:11-cv-00045 (E.D. Va. Apr. 24, 2012), the U.S. District Court for the Eastern District of Virginia held that the First Amendment to the U.S. Constitution does not protect as expressive conduct the act of clicking “like” on a Facebook page. The case arose when six former employees of the sheriff’s office of Hampton, Virginia filed suit against the sheriff, alleging that he had fired or declined to reappoint them, among other reasons, because some of them had clicked the “like” button on the Facebook page of the sheriff’s opponent in an impending election. The plaintiffs alleged that the sheriff’s adverse employment action constituted unconstitutional retaliation for the exercise of their free speech rights.

The sheriff moved for summary judgment, and the court granted that motion on the ground that “[s]imply liking a Facebook page is insufficient” to merit constitutional protection because “[i]t is not the kind of substantive statement that has previously warranted constitutional protection.” The court declared that it would—

… not attempt to infer the actual content of Carter’s posts from one click of a button on [the sheriff’s opponent’s] Facebook page. For the court to assume that the plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection.

The court also held that the sheriff had qualified immunity from liability because whatever rights the plaintiffs had that may have been violated “were not clearly established in the context of this case.” The sheriff had acknowledged in his deposition that he did not have the right to terminate the plaintiffs’ employment because of their political opposition to him. However, the court reasoned that,

Simply because an employer knows his employees have the right to oppose him politically does not create the inference that an objectively reasonable elected official in his position would fully understand the contours of his employees’ rights. Nor does it mean that he should understand the complexity of the legal questions involved in this case.

The court suggested that at least some of the former employees had served in roles representing the sheriff to the public, and thus they may have enjoyed less First Amendment protection than lower level employees. In addition, the court found that because the state would be liable to pay any adverse judgment against the sheriff in his official capacity, the plaintiffs’ claim against him in that capacity was barred by the Eleventh Amendment.

The court’s conclusion that “liking” a Facebook page does not constitute expression protected by the First Amendment has been severely criticized. See Eugene Volokh, Is a Facebook “Like” Not “Substantive” Enough to “Warrant[] Constitutional Protection”?

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