Liking constitutional protections on the Internet

Sep 20 2013 - 6:02pm

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"Like" this column on Facebook and you too can be protected by the First Amendment, according to the Fourth Circuit Court of the United States of America in the Bland v. Roberts ruling that came down earlier this week. (For the majority of you still reading this on old fashioned paper, Standard.net has all of the newspaper online, complete with handy Facebook "Like" and Twitter "Tweet" buttons where you can "like" this column.)

I was wondering why so few people "liked" my column on Standard.net, until I found out that way back in April of 2012, Judge Jackson of the Eastern District of Virginia found that pushing the "Like" button for a Facebook page was not constitutionally protected speech. I can only assume that the lack of "Likes" for my column was some unfounded fear of the "Like" button not being protected speech. A quick search also showed that Judge Jackson's public figure profile on Facebook only had four "likes," three of which seem to have confused him with a little known rapper, Alvin Jackson. This may explain some of Judge Jackson's bitterness towards the "Like" button.

Here is a little background on the case, Bland v. Roberts. Bland and the other Plaintiffs were employees of the Hampton County Sheriff's department. Sheriff Roberts was running for re-election and got a little peeved when six of his employees "liked" his opponents Facebook page. After the election, those who "liked" Sheriff Roberts' opponent all got fired. The fired employees then sued Sheriff Roberts for firing them for exercising their First Amendment right of Free Speech and Assembly. Judge Jackson wrote when dismissing their case, "Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection." This is exactly the sentence you would expect from a federal judge who finds himself confused with a rapper on Facebook.

The case went up on appeal to the Fourth Circuit which ruled this week. Facebook and the ACLU both filed briefs with the court urging the appellate judges to like their position that "like" is protected. In ruling, the judge's wrote in only the way a lawyer can: "To consider whether this conduct amounted to speech, we must first understand, as a factual matter, what it means to "like" a Facebook page." What follows in the opinion is four pages exploring what it means to "like" a Facebook page. After analyzing what "like" means, two judges gave the thumbs up sign that "like" is protected speech, because it lets you share what you like. So, everyone can click away and feel protected by the First Amendment.

For a type of speech that may have been unprotected by the First Amendment since 2012, getting someone's finger to press the right button on a computer mouse takes up a lot of advertising space. Everyday I drive past Wasatch Peaks Credit Union and the sign flashes to urge me to "Like Wasatch Peaks on Facebook." As I was writing this column, I finally succumbed, now that the Fourth Circuit has told me the First Amendment protects my right to "Like" and I hadn't been sure that Wastach Peaks wanted a bankruptcy attorney to show his public support for their Facebook page, but the Fourth Circuit said I was safe, so I clicked. (Wasatch Peaks is having a Mexican Cruise Giveaway for those of you who are interested.)

I just want the Fourth Circuit to know, I "like" your decision.

E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or creditcorrection@gmail.com.

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