It's an issue that was bound to come before a court once Facebook exploded in popularity five years ago, and now it has happened. A federal appeals court in Virginia is deciding a case that could determine if the Facebook "Like" feature is a form of Constitutionally-protected free speech. The case was brought by a group of public workers who were fired after "Liking" the Facebook page of their employer's opponent in a political race. The employees sued for wrongful termination based on First Amendment grounds, but the lower court dismissed their claim. "The trial court said that merely liking something on Facebook was not sufficient expressive activity to be protected," says Travis Crabtree, a Houston-based Internet Attorney with the firm Looper, Reed & McGraw. Crabtree is not involved in the case.
Indeed, the trial judge said simply "liking" something on Facebook isn't a "substantive statement." The employees appealed that ruling. "The lawyers for the employees are saying that liking something on Facebook is no different than having a campaign sign in your front yard," says Crabtree. Facebook's own attorneys also jumped into the fray, arguing before the appeals court last week that the "Like" feature is a vital form of expressing ideas and opinions that deserves full Constitutional protection. Crabtree expects a landmark court ruling on whether the Facebook "Like" is free speech. "That's not necessarily going to affect everybody who 'likes' a picture of their dog," he says. "But especially for public employees, a decision like this is very important."
Facebook now has some 500 million users worldwide, who make an average of 3 billion "like" clicks per day, so sorting out whether each of those is protected speech may prove complicated for the three-judge appeals panel. Nevertheless, Crabtree predicts they will ultimately overturn the lower court's decision. "This case is ripe for reversal and for a ruling that would protect First Amendment expression on Facebook," he says. "Including the simple act of pushing a button that says Like."