October 13, 2013
On Wednesday, September 18, 2013, the United States Court of Appeals for the Fourth Circuit, in a closely watched case, held that “liking” a page on Facebook is “a form of speech protected by the First Amendment.”
The case of Bland v. Roberts, 2013 U.S. App. LEXIS 19268 (4th Cir. 2013), involved a local sheriff who was running for re-election. It came to his attention that two of his deputies had “liked” his opponent’s Facebook page. After the sheriff was re-elected, he removed these deputies from their positions. The deputies sued in federal court, claiming that pressing the “like” button on Facebook was free speech protected by the First Amendment. The lower court disagreed, finding that a mere click of a mouse button to “like” a Facebook page was insufficient speech to merit constitutional protection. However, the court of appeals disagreed. A unanimous court held that “liking” a Facebook page does in fact constitute a form of speech protected by the First Amendment. More specifically, the court noted that “liking” a Facebook page is the “Internet equivalent” of displaying a political sign in one’s front yard.
As election season approaches, this decision serves as a reminder to public employers that their employees enjoy certain First Amendment free speech protections, particularly in the context of political speech. The decision is also significant as being one of the first to explore Facebook activity as a form of “speech.” The court’s analysis strongly suggests its reasoning would apply with equal force to other social media activity such as re-tweeting or clicking “favorite” icon on Twitter, or clicking the “heart” icon on Instagram.
It should be noted that the ruling in Bland, although significant, is not controlling law in Ohio at the present time, as it was decided in a different judicial circuit. Nor does it mean that all “likes” on Facebook are automatically protected for all purposes, since the right of free speech for public employees must always be balanced against the legitimate interests of the governmental entity.
Finally, it should be noted that this case did not focus on the use of public resources for political activity. School officials are reminded that under Ohio law, public resources (such as school networks and e-mail) may not be utilized to support ballot issues or candidates. See ORC 9.03.