4th Circuit Federal Appeals Court Rules Clicking Like Button on Facebook can be Protected Speech Under the First Amendment

Many of us have heard stories of people losing their jobs over things said or posted on Facebook. The way we communicate has changed dramatically with the invention and increased use of the internet and employers, employees, and the law are still struggling to catch up.

This blog has already discussed a case in which a sheriff fired six of his employees, allegedly for clicking the “Like” button on the Facebook page of his political opponent. One of those workers, Daniel Ray Carter, filed a lawsuit against B. J. Roberts, the sheriff who fired him. The lawsuit alleged that Carter’s First Amendment rights had been violated and it was filed on behalf of Carter and the five other employees who were fired, allegedly for the same reason. The lawsuit sought compensation for lost back pay and front pay or for a reinstatement in their former positions.

Roberts, after his successful 2009 campaign for sheriff’s office, failed to reinstate six of his employees, all of whom had expressed support for his opponent. Roberts claimed he let some of the workers go because he wanted to replace them with sworn deputies. Others, he said, he fired because of poor performance and because he believed that their actions “hindered the harmony and efficiency of the office.” Despite these allegations, the employees he claims to have fired for poor performance both had consistent evaluations of “above average” or “outstanding” and neither of their direct supervisors or second-level supervisors had ever indicated a performance problem.

U. S. District Judge Raymond Jackson in Norfolk ruled in April 2012 that the “Like” button on Facebook is not equivalent to a statement, and is therefore not protected by the First Amendment. He dismissed the case and the plaintiffs appealed.

In his ruling, Jackson admitted that there have been other courts which have ruled that Facebook posts are constitutionally protected speech. However, he argues that, in those cases the speech in question involved “actual statements” rather than simply clicking a button.
Jackson’s ruling was criticized by constitutional lawyers who argued that other speech conducted online, such as uploading a video, or donating money to a campaign, is protected under the First Amendment, despite the fact that they involve nothing more than the click of a button.

The three-judge 4th Circuit federal appeals court disagreed with Jackson’s decision, ruling instead that Carter’s use of the “Like” button was both “pure speech” and symbolic expression. U.S. Circuit Judge William Traxler compared clicking the button to posting a political campaign sign in a front yard, which is protected under the First Amendment. “On the most basic level,” said Traxler, “clicking on the ‘like’ button both literally causes to be published the statement that the User ‘likes’ something with is itself a substantial statement. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”

The appeals court unanimously ruled that clicking Facebook’s “Like” button was protected speech. It therefore partially reversed the lower court’s ruling and reinstated the claims of Carter and two of the other employees who sued. It determined, however, that the three other employees had not provided sufficient evidence that their support of Roberts’s opponent was the reason they were not reinstated.

The court also ruled that Roberts is immune from any monetary judgment. As an “arm of the State” he is “immune from suit for claims against him in that capacity”. He is not immune, however, from the plaintiffs’ claims for reinstatement.

You can view the entire appellate decision here.

Our Chicago libel attorneys concentrate in this area of the law. We have defended or prosecuted a number of defamation and libel cases, including cases representing a consumer sued by a large luxury used car dealer in federal court for hundreds of negative internet reviews and videos which resulted in substantial media coverage of the suit; one of Loyola University’s largest contributors when the head basketball coach sued him for libel after he was fired; and a lawyer who was falsely accused of committing fraud with the false allegation published to the Dean of the University of Illinois School of Law, where the lawyer attended law school and the President of the University of Illinois. One of our partners also participated in representing a high profile athlete against a well-known radio shock jock.

Our Chicago defamation lawyers defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. Our Chicago slander attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Oak Park and River Forest, who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and offline media. We have successfully represented businesses who have been the victim of competitors setting up false rating sites and pretend consumer rating sites that are simply forums to falsely bash or business clients. We have also represented and defended consumers First Amendment and free speech rights to criticize businesses who are guilty of consumer fraud and false advertising.

Super Lawyers named Chicago and Oak Brook business trial attorney Peter Lubin a Super Lawyer in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. Lubin Austermuehle’s Oak Brook and Chicago business trial lawyers have over a quarter of a century of experience in litigating complex class action, consumer rights, and business and commercial litigation disputes. We handle emergency business lawsuits involving injunctions, and TROS, defamation, libel, and covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist businesses and business owners who are victims of fraud or defamatory attacks on their business and reputations.

Lubin Austermuehle’s Barrington and Schiller Park litigation attorneys have more than two and half decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business, commercial, class-action, and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Oak Brook, near Waukegan and Wheaton, we serve clients throughout Illinois and the Midwest.

If you are the victim of a defamatory attack on your business or a consumer who has been sued to stop you from posting criticism of a business online at Yelp or anywhere else, contact one of our Oak Brook and Chicago defamation lawyers for a free consultation at 630-333-0333 or online by filling out our contact us form at the side of this blog.

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