Fourth Circuit Allows Facebook “Like” as Free Speech Case to Proceed

The Fourth Circuit Court of Appeals will allow the free speech claims of Sherriff’s department employees not reappointed after “liking” the Sherriff’s reelection opponent on Facebook to proceed to trial. Bland et al. v. B.J. Roberts, et al. (4th Cir. 2013). The Fourth Circuit overruled the lower court’s decision that “liking” the Sherriff’s opponent was not protected speech. An article in our September 2012 Bulletin discusses the lower court decision in detail.

The Fourth Circuit held, “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 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.”

Employers should take note of this decision as it means that employees do not necessarily lose legal protections to communicate by simply using a website like Facebook to express their ideas. Employers should review their social media policies and keep up to date with court decisions involving social media.