Thumbs Up: Fourth Circuit in Bland Determines Facebook “Likes” Are Protected Under the First Amendment

In Bland v. Roberts,[ref]730 F.3d 368 (4th Cir. 2013).[/ref] the Fourth Circuit held that “liking” a politician’s campaign Facebook page constituted protected speech under the First Amendment.[ref]See id. at 385-86.[/ref] In doing so, the court resolved an issue of first impression that interconnects First Amendment jurisprudence with social media’s influence on how people express themselves. The six plaintiffs in Bland are former employees of the Hampton, Virginia Sheriff’s Office, run by Sheriff B.J. Roberts. In November 2009, Roberts was pursuing reelection and running against an employee, Jim Adams.[ref]See id. at 372; Bland v. Roberts, 857 F. Supp. 2d 599, 601 (E.D. Va. 2012), aff’d in part, rev’d in part, remanded, 730 F.3d 368 (4th Cir. 2013). [/ref] Plaintiffs alleged that in the summer of 2009, Roberts learned that they each expressed support for Adams’ campaign. One of the plaintiffs expressed his support for Adams by “liking” his campaign’s Facebook page.[ref]See Bland, 857 F. Supp. 2d at 601.[/ref] After winning reelection that year, Roberts reappointed 146 of his 159 full-time employees; the six plaintiffs were not reappointed.[ref]See Bland, 730 F.3d at 372.[/ref] In March 2011, the plaintiffs filed suit in federal district court, alleging Roberts violated their First Amendment rights when he declined to reappoint them due to their support of Adams in the 2009 election.[ref]See Bland, 857 F. Supp. 2d at 602.[/ref]
 
In December 2011, Roberts moved for summary judgment, asserting, among other claims, that the plaintiffs had not adequately alleged protected speech under the Constitution.[ref]See id.[/ref] The district court granted Roberts’ motion for summary judgment and, regarding the activity on Adams’ campaign’s Facebook page, concluded that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”[ref]See id. at 603.[/ref] The court distinguished “liking” a Facebook page from cases where people posted actual statements on a particular Facebook page; the latter determined by the court to be expressions of constitutionally protected speech.[ref]Compare Bland v. Roberts, 857 F. Supp. 2d 599 (E.D. Va. 2012), aff’d in part, rev’d in part, remanded, 730 F.3d 368 (4th Cir. 2013) (“liking” Facebook page did not warrant constitutional protection), with Gresham v. City of Atlanta, No. 1:10–CV–1301–RWS, 2011 WL 4601020, at *2 (N.D. Ga. Mar. 25, 2013) (posting comment on Facebook wall by police officer concerning arrest constitutionally protected), and Mattingly v. Milligan, No. 4:11CV00215, 2011 WL 5184283, at *4 (E.D. Ark. Nov. 1, 2011) (posting comment on Facebook wall regarding co-worker layoffs protected under First Amendment).[/ref] The court reasoned that “liking” a Facebook page is neither substantive nor a type of statement that has previously warranted constitutional protection, arguing that it would be improper for a court to infer the significance of simply “liking” Adams’ Facebook page without indicia of a specific statement.[ref]See Bland, 857 F. Supp. 2d at 604.[/ref] On appeal, the plaintiffs maintained that the district court erred in granting summary judgment and renewed their allegations that Roberts retaliated against them in violation of their First Amendment rights by choosing not to reappoint them due to their support of his electoral opponent.[ref]See Bland v. Roberts, 730 F.3d 368, 371 (4th Cir. 2013).[/ref] Carter, the plaintiff who “liked” Adams’ campaign Facebook page, specifically argued that his “like” was protected speech.
 
The First Amendment of the U.S. Constitution sets forth that “Congress shall make no law . . . abridging the freedom of speech.”[ref]U.S. Const. amend. I.[/ref] Nevertheless, not all speech constitutes protected speech; in fact, there are particular types of speech that are afforded no protection at all. For example, such protection would not extend to a person who falsely shouts “Fire!” in a theater initiating a panic throughout the crowd, nor would it apply to an individual who solicits another person to commit a specific crime.[ref]See Schenck v. United States, 249 U.S. 47, 52 (1919) (stating “character of every act depends upon the circumstances in which it is done”); see also United States v. Williams, 553 U.S. 285, 298-99 (2008) (differentiating between solicitation of specific crime and advocacy of crime in general).[/ref] The First Amendment affords the broadest protection to the discussion of public and political issues.[ref]See Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-72 (1971) (declaring First Amendment’s purpose to protect “interchange of ideas bringing . . . political and social changes”).[/ref] Indeed, one of the principal purposes of the First Amendment is to protect free discussion of governmental matters.[ref]See Mills v. Alabama, 384 U.S. 214, 218 (1966) (explaining universally agreed upon concept of First Amendment protecting open government discussion).[/ref] Political speech is at the heart of what the First Amendment serves to guard; thus, it is afforded the highest level of constitutional protection and receives unique deference.[ref]See Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 222-23 (1989) (holding state law banning political primary endorsements directly affects constitutionally protected speech).[/ref]
 
The Supreme Court has acknowledged that although the First Amendment applies only to traditional “speech,” the expressive nature of particular actions should also be afforded protection.[ref]See Texas v. Johnson, 491 U.S. 397, 404 (1989) (noting “speech” may include more than spoken or written words).[/ref] Expressive conduct, falling within the scope of the First Amendment, must be “sufficiently imbued with elements of communication.”[ref]Spence v. Washington, 418 U.S. 405, 409 (1974) (per curiam).[/ref] The Supreme Court has determined that there are a number of symbolic acts that constitute speech and are thus afforded protection under the First Amendment. In 1969, for example, the Court held that wearing black armbands representing disapproval of the Vietnam War was a symbolic expression protected by the First Amendment.[ref]See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513-14 (1969).[/ref] Subsequently, in 1974, the Court held that hanging an upside down American flag with a peace symbol affixed on it constituted symbolic speech that fell within the scope of the First Amendment.[ref]See Spence, 418 U.S. at 410-11.[/ref] Notably, in 1994, the Court held that a citywide ban on almost all residential signs violated the First Amendment, emphasizing the tradition of expressing political views through signs on one’s residence.[ref]See City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994).[/ref] The Court highlighted a two-part analysis to determine what symbolic speech was afforded constitutional protection: is there “[a]n intent to convey a particularized message,” and “in the surrounding circumstances [is] the likelihood . . . great that the message would be understood by those who viewed it[?]”[ref]Spence, 418 U.S. at 410-11.[/ref]
 
While the conduct in the previously discussed cases is far from an exhaustive record of the Court’s recognition of symbolic speech, it serves to illustrate the Court’s practice of liberally interpreting what constitutes protected speech under the First Amendment. Given this trend, it seems appropriate that, in an era of social media, the Fourth Circuit in Bland held that “liking” a politician’s campaign Facebook page constituted protected speech. Facebook, one of today’s most popular social media platforms, has an estimated 1.19 billion monthly active users and 874 million monthly active mobile users worldwide.[ref]See Newsroom: Key Facts, Facebook, http://newsroom.fb.com/Key-Facts (last visited Dec. 5, 2013) (reporting number of monthly Facebook users, including mobile users).[/ref] Facebook’s website serves as an “online social network where members develop personalized web profiles to interact and share information with other members.”[ref]See Lane v. Facebook, Inc., 696 F.3d 811, 816 (9th Cir. 2012) cert. denied, Marek v. Lane, No. 13-136, 2013 WL 5878083 (U.S. Nov. 4, 2013).[/ref] Facebook users share a variety of information on this website including “news headlines, photographs, videos, personal stories, and activity updates.”[ref]See id.[/ref] Users publish such information to their own personal user profiles and the information is then accessible by the users’ “friends,” who are other Facebook users within their online network.[ref]See id.[/ref]
 
According to Facebook, more than three billion “likes” and comments are posted on its website every day.[ref]See The Power of Facebook Advertising, Facebook, https://www.facebook.com/business/power-of-advertising (last visited Dec. 5, 2013) (reporting recent statistics reflecting Facebook’s worldwide reach, engagement, influence).[/ref] The “like” button, represented by a “thumbs up” symbol, is a way for Facebook users to indicate to other users that they enjoy something that another user posted on the website.[ref]See Liking Things on Facebook: What Does It Mean to “Like” Something?, Facebook, http://www.facebook.com/help/like (last visited Dec. 5, 2013) (describing concept of “liking” items on Facebook).[/ref] When a Facebook user “likes” something on Facebook, that user’s name is published beneath the item and a story is published on the user’s timeline.[ref]See id.; see also What Is Facebook Timeline?, Facebook, https://www.facebook.com/help/133986550032744 (last visited Dec. 5, 2013) (characterizing timeline as collection of a user’s photos, stories, and experiences).[/ref] “Liking” a particular Facebook page signifies that the user is connecting to that page; the page will appear on the user’s timeline and the user will appear on the page as a person who “likes” that page.[ref]See Liking Things on Facebook: What’s the Difference Between Liking an Item a Friend Posts and Liking a Page?, Facebook, http://www.facebook.com/help/like (last visited Dec. 5, 2013) (demonstrating difference between “liking” Facebook posts and pages).[/ref] Further, when a user “likes” a page it may also appear on the user’s “friend’s” News Feeds and other places on Facebook.[ref]See What Is the Difference Between Liking a Page and Following to a Page?, Facebook, http://www.facebook.com/help/281831781936488?sr=4&sid=0hXp5lHKkKv75jLHC (last visited Dec. 5, 2013) (explaining where Facebook “likes” may be published); see also What Is News Feed?, Facebook, https://www.facebook.com/help/210346402339221?sr=1&sid=0BipQq0gWM6vHGeXm (last visited Dec. 5, 2013) (explaining concept of Facebook News Feed). Facebook states that a News Feed is the center column of a user’s home page and is a constantly updating list of activities from people and pages that a user follows on Facebook. See What Is News Feed?, supra. Items normally found on a user’s News Feed include “status updates, photos, videos, links, app activity and likes.” Id.[/ref]
 
In Bland, one of the plaintiffs visited Adams’ campaign Facebook page and clicked the “like” button. As a result, his name and picture were added to Adams’ campaign Facebook page, and the campaign Facebook page’s name and Adams’ photo was likewise added to this plaintiff’s profile. “Liking” Adams’s campaign Facebook page served as an announcement to all of the plaintiff’s Facebook “friends” and all Facebook users viewing the campaign Facebook page that this plaintiff supported Adams. The Fourth Circuit held that, in understanding the implications of “liking” the campaign Facebook page, it becomes evident that such conduct qualifies as speech.[ref]See Bland v. Roberts, 730 F.3d 368, 386 (4th Cir. 2013).[/ref] The court explained that on the most rudimentary level, clicking the “like” button creates a published statement that the user “likes” something, which qualifies as a substantive statement.[ref]See id. (explaining basis for holding constitutionally protected speech includes “likes”).[/ref] Here, in the context of the plaintiff “liking” a political campaign Facebook page, it is abundantly apparent that the “like” indicated that the plaintiff approved of Adams’ candidacy.[ref]See id.[/ref] The court held that whether the plaintiff “liked” the political campaign’s Facebook page with the click of a mouse or typed out the same message with individual keystrokes was of no constitutional significance.[ref]See id.[/ref] Further, the Fourth Circuit stated that while “liking” Adams’ campaign Facebook page constituted pure speech, it was also symbolic expression.[ref]See Bland, 730 F.3d at 386. (differentiating between pure speech and symbolic speech).[/ref] The “thumbs up” icon that Facebook associates with “liking” a page conveyed the plaintiff’s endorsement of Adams’ candidacy.[ref]See id. (stating further that “likes” met two-pronged test set forth in Spence).[/ref] Thus, the Fourth Circuit held that “liking” a political candidate’s campaign Facebook page communicates to people viewing the plaintiff’s profile or campaign Facebook page that the user approves of and supports the candidate—the Internet equivalent of displaying a political sign on one’s front yard.[ref]See id. (equating Facebook “like” to residential political signs). Further, information in the record indicated that this is precisely how the Facebook “like” was interpreted. See id. Testimony was given that people in the Sherriff’s Office were discussing the fact that one of the plaintiff’s that “liked” Adams’ campaign Facebook page openly supported Adams. [ref]See id.[/ref]
 
The Internet has undoubtedly increased the public’s ability to access information about political candidates and the issues surrounding their campaigns. Social media, in particular, provides political candidates with an effective and cost-efficient platform, which allows the candidates to reach out to, and gain support from, an ample amount of individuals.[ref]See Ira P. Robbins, What Is the Meaning of “Like”?: The First Amendment Implications of Social-Media Expression, 7 Fed. Cts. L. Rev. 127, 147 (2013) (determining social media enables candidates to “reach and garner support from much larger audiences”).[/ref] Social media gives candidates the platform and ability to update their supporters on a moment’s notice and develop personal connections with their constituents.[ref]See Jennifer Schlesinger, Votes, Photos, and Book Recommendations: How Politicians Use Facebook, ABC News(Dec. 15, 2010), http://abcnews.go.com/Politics/politicians-facebook-photos-videos-votes-reach-constituents/story?id=12358070 (analogizing Facebook to “virtual town hall” for politicians).[/ref] Arguably, candidates and elected officials who are not using social media are at a disadvantage to those who are because familiarity breeds trust. Moreover, social media websites, such as Facebook, provide a platform that allows voters to become involved in the political process without having to leave their computer screens. Never before has it been easier for people from every corner of the political sphere—from voter to candidate—to communicate their ideas and opinions.
 
It is critical that courts be insistent that the breadth of the First Amendment encompasses speech created through the use of modern technologies, as many are using social media as their preferred avenue to express their political views and ideas. Print newspaper, radio, and television have given way to the Internet. Social media websites are changing the nature of political campaigns and speech itself. Websites such as Facebook, Twitter, and YouTube are among the most popular websites used for political speech, conversation, and coordination.[ref]See Clay Shirky, The Political Power of Social Media: Technology, the Public Sphere, and Political Change, Foreign Affairs (Jan./Feb. 2011), available at http://www.foreignaffairs.com/articles/67038/clay-shirky/the-political-power-of-social-media (describing prevalence of American social media websites in modern day politics).[/ref] Although the court in Bland properly determined that “liking” a campaign’s Facebook page constitutes speech within the meaning of the First Amendment, it would be naive to assume that First Amendment issues concerning expression on social media have been resolved. It is more likely that Bland will set the stage for courts to consider, if they have not been doing so already, other aspects of social media that should be afforded constitutional protection under the First Amendment. For instance, if “liking” a campaign’s Facebook page is protected under the First Amendment, does that protection extend to merely “sharing” a campaign’s Facebook page?[ref]See How Do I Share a Post I See In My News Feed?, Facebook, http://www.facebook.com/help/163779957017799?sr=1&sid=05Kh10rSvudmLmlGl (last visited Dec. 5, 2013) (explaining concept of “sharing” on Facebook). Facebook users have the ability to “share” links and photos under other user’s posts and updates. See id. The “sharing” feature allows users to “share” something that he or she finds interesting and wants other users to see. See id.
[/ref] It is probable that Bland will serve as a catalyst and model for courts to broaden, rather than redefine, the concept of protected political speech in an age where social media has become embedded in the political process. While the Fourth Circuit in Bland upheld the Supreme Court’s tradition of broadly construing what constitutes protected political speech (including both pure and symbolic), it is crucial that courts continue to do the same in this era of rapid technological progress.