Go Ahead, Keep Clicking that Like Button, the First Amendment is Behind You

A federal court (the Fourth Circuit Court of Appeals) ruled last week that clicking "like" on a political candidate's Facebook page "is the Internet equivalent of displaying a political sign, which the Supreme Court has held is substantive speech."

The case came from humble beginnings. Dan Carter and Robert McCoy were working as lowly jailers for the Hampton (VA) Sheriff's Office. Their "boss" -- the sheriff, Sheriff Roberts -- was up for re-election. Sheriff Roberts was not to be trifled with as he had been serving as Sheriff for Hampton for 17 years.

Well, in 2009 -- the wheel of justice move slowly -- Sheriff Roberts had a challenger from within his own ranks: Lieutenant Colonel Adams (he actually resigned to run). As we live in the "ubiquity of Facebook" era (is it starting to wane?), Adams created a Facebook page for his campaign. Deputies Carter and McCoy went to his page and "liked" the page and also posted messages on the page supporting Adams' candidacy.

Office gossip being what it is, word of the dissension in the ranks spread, and Sheriff Roberts learned of their "lack of loyalty." Sheriff Roberts gave a speech to his employees saying they would be fired if they openly supported Adams.

Well, you can see where this is going. After the election -- Roberts won -- Carter and McCoy were terminated and they sued. Sheriff Roberts convinced the trial court -- on a motion for summary judgment -- that there was no First Amendment issues. The court of appeals, said, "whoa, you are wrong, this is no different than posting a yard sign."

So, at least in the political speech context, keep on clicking that like button and posting supportive messages on Facebook. The First Amendment is behind you.*

*(I need to be pedantic for a moment: as many people seem to be unaware, the First Amendment only provides protection when the government is taking action against you, not a private person or company. Now you know, and knowing is half the battle).

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