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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Facebook, ACLU Argue that “Like” Button is Protected Speech

Posted in Litigation, Social Media

This week, Facebook and the American Civil Liberties Union (ACLU) have filed amicus curiae briefs in the Fourth Circuit U.S. Court of Appeals arguing that using Facebook’s “Like” button is speech protected by the First Amendment.  The court of appeals is considering whether to overturn a decision by Eastern District of Virginia Judge Raymond A. Jackson holding that “[s]imply liking a Facebook page is insufficient” for First Amendment protection because “[i]t is not the kind of substantive statement that has previously warranted constitutional protection.”

In the case, Bland v. Roberts, former employees of the Hampton, Virginia, sheriff’s office allege that they were fired in retaliation for taking actions to support Sheriff B.J. Roberts’ opponent in an election.  One plaintiff alleges that he was fired in retaliation for “liking” the Facebook page of Roberts’ opponent.  In its brief, the ACLU argues that “’Liking’ a political candidate on Facebook – just like holding a campaign sign – is constitutionally protected speech.”  Facebook raises similar arguments and also notes the increasingly important role the site has played in political campaigns.