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Clicking ‘Like’ is free speech, Facebook, ACLU tell 4th Circuit

NORFOLK, Va. — Attorneys for Facebook and the American Civil Liberties Union want the 4th U.S. Circuit Court of Appeals to rule that clicking “Like” on the social networking site is constitutionally-protected free speech.

The case revolves around six employees who were fired by Hampton Sheriff B.J. Roberts after they supported his re-election opponent in 2009. One of those workers, Daniel Ray Carter, had “liked” the Facebook page of Roberts’ opponent.

Facebook said clicking ‘Like’ was the 21st century-equivalent of a campaign yard sign.

“If Carter had stood on a street corner and announced, ‘I like Jim Adams for Hampton sheriff,’ there would be no dispute that his statement was constitutionally protected speech,” the company wrote in a friend of the court brief filed with the 4th Circuit. “Carter made that very statement; the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection.”

U.S. District Judge Raymond Jackson ruled against the workers in April, saying merely ‘liking’ a Facebook page was insufficient speech to merit constitutional protection.

“In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record,” Raymond wrote.

Facebook and the ACLU want the appeals court to vacate the judge’s decision. The ACLU also is advocating on behalf of the other fired workers who did not click ‘Like’ but who are also appealing.

Roberts said some of the workers were let go because he wanted to replace them with sworn deputies while others were fired because of poor performance or his belief that their actions “hindered the harmony and efficiency of the office.”

The ACLU argued that doesn’t outweigh the employees’ rights.

“It is binding First Amendment law that irrespective of an employee’s position, a public employer cannot terminate him or her for speech on a matter of public concern unrelated to his or her job duties,” the group wrote.

While the incident occurred in Virginia, the 4th Circuit’s decisions are also binding on federal courts in Maryland as well as North and South Carolina and West Virginia.