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September 27, 2013 / jlinder2013

Facebook “Like” Is Protected Speech

A group of individuals working for the Sherriff of Hampton, Virginia, B.J. Roberts, were fired after they were discovered to have “liked” the Facebook page of his opponent prior to his bid for re-election.  After winning the race, Roberts decided to let these workers go, in part because he believed that political disloyalty was a legal basis for doing so.  The fired employees brought suit against Roberts, alleging violations of their First Amendment rights.

A federal judge found for the sheriff, holding that “liking” something on Facebook does not qualify as speech worthy of First Amendment protection.  However, the 4th Circuit reversed, ruling that such action is, in fact, protected speech.  The court reasoned that “liking” something is a substantive statement, especially in the political context, and that there is no constitutional significance in the fact that instead of writing out the whole word, one simply clicks a button.  Chief Judge William Traxler Jr. compared “liking” a political candidate on Facebook to “displaying a political sign in one’s front yard.”

The Court held that although the sheriff’s actions were a violation of the plaintiffs’ First Amendment rights, because the sheriff could have reasonably believed he could fire the plaintiffs for political disloyalty, he was entitled to qualified immunity.  However, this immunity did not extend to the plaintiffs’ claims for reinstatement, which were remanded to the lower court.

If you were fired or subjected to negative employment actions for “liking” material on Facebook, you may be entitled to relief.  Please contact Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.


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