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Facebook 'Like' Is Free Speech: Appeals Court

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By Aditi Mukherji, JD on September 19, 2013 8:58 AM

If you "like" the First Amendment, you're in luck, because a Facebook "like" is protected free speech, according to a new ruling by the 4th U.S. Circuit Court of Appeals.

The "like" lawsuit stemmed from Daniel Ray Carter, a sheriff's deputy in Hampton, Virginia, who was fired after "liking" the campaign page of the sheriff's election challenger -- otherwise known as his boss's opponent.

The deputy claimed his "like" was protected by the First Amendment. A lower court "disliked" that argument, but the 4th Circuit -- along with Facebook and the ACLU -- "poked" back.

4th Circuit 'Un-Likes' District Court Ruling

Ordinarily, it is against the law to terminate an employee for his political opinions.

When Carter sued, however, a Virginia district court judge ruled that merely "liking" a Facebook page, unlike writing an affirmative message on Facebook, was not protected under the First Amendment.

But on Wednesday, the 4th Circuit rejected that interpretation.

Facebook 'Like' Is Like an e-Yard Sign

Writing for the three-member panel, Chief Judge William B. Traxler Jr. went over how a Facebook "like" works.

For those of you who don't exist aren't on Facebook, the process includes adding a picture of the subject's page to the user's own profile and a story popping up in that user's friends' newsfeed.

Those actions, the court concluded, make Facebook "likes" substantive speech.

In his opinion, Traxler equated a "like" to a digital version of a political yard sign, which the U.S. Supreme Court has held as protected substantive speech. This is because "likes" communicate users' approval and substantively associate users with the page's subject.

On a rudimentary level, we Facebook users know this: You are your "likes." They are statements. And your friends are judging you when you "like" Nickelback.

Unlike the district court, the 4th Circuit recognizes this, too.

The ruling only applies to states within the 4th Circuit (the Carolinas, Virginia, West Virginia, and Maryland), but the court's decision could have persuasive power in other jurisdictions. It's also important to keep in mind that this case involved a state employee; alas, speech protections are weaker in the private sector.

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