Liking A Facebook Page Is Not Protected Speech

April 30, 2012

By Antonio P. Garcia, Jr., Esq.

For those of you who are Facebook users, you probably are familiar with the "Like" button on a Facebook page. Liking a page means that a user is connecting to that page. By clicking the "Like" button, the page will appear on the user's profile and the user will appear on that page as a person who likes it. Depending on the user's account privacy settings, other Facebook users, and even the general public, could see that the user likes the page.

Liking a page suggests that the user approves of the page's subject matter, whether it be a movie, athlete, or political figure. If a user expresses approval by clicking the "Like" button, then does liking a Facebook page constitute speech protected under the First Amendment of the United States Constitution? In Bland v. Roberts, Civ. Action No. 4:11cv45 (Apr. 24, 2012), the United States District Court for the Eastern District of Virginia ruled that liking a Facebook page was not protected speech.

In Bland, Bobby Bland and four co-workers worked in the Sheriff's Department in Hampton, Virginia. All of them allegedly supported Jim Adams, who was running for sheriff against their boss, Sheriff B.J. Roberts. Two co-workers, Daniel Ray Carter, Jr. and Robert McCoy, clicked the "Like" button on Adams' Facebook page. Roberts won the election. After his victory, Roberts promptly fired all five employees citing a lack of "harmony and efficiency" in the office, budget constraints, and unsatisfactory work performance.

Bland and his co-workers sued Roberts individually and in his capacity as the Hampton Sheriff. Carter and McCoy claimed that liking Adams' Facebook page was the real reason why they were fired. Their firing constituted retaliation for exercising their right to freedom of speech when they chose to support Adams in the election. Among other things, Roberts moved for summary judgment on the ground that McCoy and Carter did not adequately allege protected speech under the First Amendment.

The district court disagreed with McCoy and Carter, and granted Roberts' summary judgment motion. In analyzing McCoy and Carter's claims, the district court relied upon the three-prong test laid out in McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998):

"[T]o determine whether a public employee has stated a claim under the First Amendment for retaliatory discharge, we must determine (1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a personal matter of personal interest; (2) whether the employee's interest in speaking upon the matter of public concern outweighed the government's interest in providing effective and efficient services to the public; and (3) whether the employee's speech was a substantial factor in the employee's termination decision."

The district court held that McCoy and Carter did not satisfy the first prong of the McVey test because they did not sufficiently engage in expressive speech. The district court noted that where courts found that constitutional speech protections extended to Facebook posts, actual written statements existed in the record. In this case, the court found that liking an opponent's Facebook page did not constitute a written statement, so it did not qualify for First Amendment protection:

"No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter's posts from one click of a button on Adams' 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 district court's decision is significant because it appears inconsistent with prior First Amendment decisions. The district court based its decision on the fact that an actual written statement, such as a comment or wall post on a Facebook page, was necessary to garner First Amendment protection. However, courts have held that the First Amendment protects various forms of expression that do not constitute written statements. For example, in Texas v. Johnson, 491 U.S. 397, 420 (1989), the United States Supreme Court held that flag burning was protected speech. Hence, Carter and McCoy's liking of Adams' Facebook page could be interpreted as nonverbal political support meriting First Amendment protection.

This case also is significant because it represents an example of the unresolved legal issue of whether online actions merit the same protections as offline forms of protected speech. The fact that Carter and McCoy expressed their support for a political figure through a social media website could be significant for courts in future cases when deciding if similar actions constitute protected speech. Hence, some courts could require online actions to meet a different standard for First Amendment protection than offline forms of protected speech.

Because Bland is at odds with past First Amendment decisions and deals with an unresolved legal issue, this case could end up at the United States Supreme Court for review.

Until this case is resolved, before you click the "Like" button on a Facebook page you should be mindful of the page's subject matter, who could view it, and how others could perceive it. A simple expression of approval could serve as a basis to get you fired. And you won't like that.