Are Facebook “Likes” Protected Speech?

Aug. 22, 2012 - PRLog -- A Virginia federal judge held in April that “merely ‘liking’ a Facebook page “is insufficient speech to merit constitutional protection, now, on appeal to the 4th Circuit.  The ACLU and Facebook have filed amicus briefs in support of just the opposite.  

The case stems from a 2009 election for Hampton, Virginia’s sheriff, in which Sheriff B.J. Roberts was re-elected.  Following the election, the Sheriff’s department allegedly fired several employees based on “hindrance of the harmony and efficiency of the office,” as well as budget reasons and poor work performance.  The former employees allege that they were fired for “liking” the Facebook page of Sheriff Robert’s opponent during the election.  

In finding that Facebook “likes” did not constitute protected speech, the court reasoned, “in cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.”

Darin Klemchuk, Social Media Lawyer at Klemchuk Kubasta LLP, notes, “this case brings to the forefront the issue of whether a simple action, such as a mouse-click, can be considered substantively expressive.  Some would consider the actions in this case analogous to the Supreme Court case in which the Court held that the black arm bands worn by three public school students in protest of the Vietnam War was protected speech.”

The ACLU and Facebook argue against the position that clicking the Facebook “like” button is not a substantive statement.  Facebook contended that with a click of a computer’s mouse, each of the employees made the statement that ‘I like Jim Adams for Hampton Sheriff,” which is no different than if each of the employees stood on a street corner and announced the same, which is undisputedly constitutionally protected speech.  The ACLU argues that as the technological world grows, new ways of communication must also be protected.  In order to demonstrate the power of mouse-click actions, the ACLU cited signing a petition, donating to a campaign online, and re-tweeting tweets.

“No matter how this case is resolved, there is no mistaking that with the advent of new technology and the ever-expanding realm of social media, novel questions of law will continue to arise,” says Klemchuk.



About Darin Klemchuk:
Darin Klemchuk is co-founder and managing partner of Klemchuk Kubasta LLP, a Dallas-based IP boutique law firm that offers comprehensive intellectual property legal services, including litigation and enforcement of all forms of intellectual property as well as registration and licensing of patents, trademarks, trade dress and copyrights.  For Mr. Klemchuk’s full bio, click here.  To contact Mr. Klemchuk, email him at darin.klemchuk@kk-llp.com

About Klemchuk Kubasta LLP:
Based in Dallas, Texas, Klemchuk Kubasta LLP is an IP boutique law firm that offers comprehensive intellectual property legal services, including litigation and enforcement of all forms of intellectual property as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides legal services relating to domain names, e-commerce, privacy policies, social media, Internet law, commercial and business litigation, technology transactions, and international business & trade.  Additional information about the firm and its attorneys may be found at www.kk-llp.com.