Facebook says the ruling 'betrays a misunderstanding of the nature of the communication.' Facebook, ACLU: 'Like' is free speech

The ACLU wants a federal judge to add "liking" something on Facebook to the list of inalienable constitutional rights.

The civil liberties group joined the social network this week in filing amicus briefs with the 4th Circuit Court of Appeals in Richmond, arguing that a District Court judge was wrong in refusing to grant free speech protection to "liking" something on Facebook.


District Court Judge Raymond A. Jackson ruled this spring that employees of the Hampton Virginia Sheriff’s Office, who were allegedly fired because they “liked” the Facebook page of Sheriff B.J. Roberts’ opponent in the 2009 election, didn’t do enough to warrant constitutional protection.

“It is the Court's conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” Jackson wrote in his opinion. “In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.”

The ACLU and Facebook both decried that finding earlier this week.

“Whether someone presses a ‘Like’ button to express those thoughts or presses the buttons on a keyboard to write out those words, the end result is the same: One is telling the world about one’s personal beliefs, interests, and opinions,” the ACLU wrote in its brief. “That is exactly what the First Amendment protects, however that information is conveyed.”

Facebook said that Jackson’s ruling “betrays a misunderstanding of the nature of the communication at issue and disregards well-settled Supreme Court and Fourth Circuit precedent.”

According to court documents, Roberts admitted that he was aware that a pair of the department’s employees, Daniel Ray Carter and Robert W. McCoy, had “liked” his opponent Jim Adams on Adams’s Facebook page. He said he fired several employees — including the two who "liked" his opponent — because he had to reduce the number of deputies on the force, for unsatisfactory work performance or for his belief that their actions “hindered the harmony and efficiency of the Office.”

While a government employee can’t legally be fired for expressing a political allegiance, Jackson decided that Roberts was in the clear because there wasn’t enough evidence that their expressions of support rose to that level.

Facebook and the ACLU, however, think that hitting the “Like” button deserves that same level of scrutiny that is given to other methods of speech.

“Indeed, there would have been no difference between wearing a pin that says ‘I like Ike’ and pressing a ‘Like’ button on Dwight Eisenhower’s Web page, had one existed,” the ACLU wrote. “Moreover, the ‘Like’ button has a ‘thumbs up’ symbol — a universally recognized symbol.”

This article first appeared on POLITICO Pro at 2:47 p.m. on August 7, 2012.