Federal Appeals Court To Decide If Liking A Facebook Page Is Protected Speech

June 1, 2012

By Antonio P. Garcia, Jr., Esq.

In an earlier post I discussed the case of Bland v. Roberts, Civ. Action No. 4:11cv45 (Apr. 24, 2012), in which the United States District Court for the Eastern District of Virginia held that "liking" a Facebook page did not constitute speech protected by the First Amendment.

In Bland, a group of former employees from the Sheriff's Department in Hampton, Virginia sued their boss, Sheriff Roberts, after they were fired from their jobs. Two of the employees alleged that Roberts violated their First Amendment rights to freedom of speech when they supported an opposing candidate in the local election for sheriff by liking the candidate's Facebook page The district court found that liking a Facebook page did not constitute protected speech because liking the page did not equate to an actual written statement.

On May 23, 2012, the plaintiffs filed a notice of appeal to the United States Court of Appeals for the Fourth Circuit to have the appellate court review the district court's decision and determine whether it was correct.

The district court's decision is significant. The district court based its decision on the fact that an actual written statement was necessary to warrant First Amendment protection, but courts have held that the First Amendment protects forms of expression that do not involve a written statement. In addition, the case represents an example of the unresolved legal issue of whether online actions merit the same protections as offline forms of protected speech. Given that this case appears inconsistent with prior First Amendment cases and deals with an unresolved legal issue, the United States Supreme Court could end up reviewing this case after the Fourth Circuit reviews it.

We will continue to monitor this case as it progresses.