Friday, September 20, 2013

Facebook "Like" Gets First Amendment Protection! - COTW #161

Last year, I blogged about a district court decision holding that a Facebook "Like" did not receive First Amendment protection (see here). I was skeptical, and predicted that other courts would find that "Likes" do receive protection.

Well, the Fourth Circuit Court of Appeals reversed that decision and held:
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.
You can read the opinion here.

Fellow employment law blogger, Dan Schwartz, has some insightful commentary here, including:
Of course, the decision leaves a lot of questions unanswered. Will a “like” always be protected? What if you are “liking” a page just to track it? How do you know when a “Like” is really for liking a page?

And of course, what about other similar actions on other social networks? Is an “endorsement” on LinkedIn really an endorsement of an employee’s views? Is a retweet on Twitter a supportive role? What about a “+1″ on Google+? Or a Heart on Instagram?
I think the short answer is that all of these actions express something. What that "something" is will often be difficult to discern (and I suspect even harder to connect to an employment action in the context of public employee free speech retaliation cases).

Endnote: I just realized that, in an 81-page opinion, I selected the exact quote that Dan used. Whether that's coincedence, or me subconciously picking up on the language that I had seen in Dan's post . . . I don't know. Or, maybe the world's greatest legal minds just agree as to the most important part of the Court's opinion. ;-)

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