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Federal appeals court rules Facebook 'Like' is free speech

The US Court of Appeals for the Fourth Circuit [official website] ruled [opinion] Wednesday that use of the "Like" button on Facebook is constitutionally protected free speech under the First Amendment [Cornell LII backgrounder] and cannot be used against public employees. Five former appointees for the sheriff's office in Hampton, Virginia, sued the sheriff for choosing not to reappoint them after they used the button to support his opponent's campaign in 2009. The court held that such a public expression did not interfere with their duties as public servants and was essentially the equivalent of posting a campaign sign in their front yard, a long-standing protected form of speech. Referencing a plethora of circuit and Supreme Court cases, Chief Judge Traxler wrote:

[T]he First Amendment generally bars the firing of public employees "solely for the reason that they were not affiliated with a particular political party or candidate" ... as such firings can impose restraints "on freedoms of belief and association." ... "[T]he question is whether the hiring authority can demonstrate that party affiliation [or political allegiance] is an appropriate requirement for the effective performance of the public office involved."
The court held that such a requirement was not necessary for the completion of the duties for which the plaintiffs were appointed. However, the majority held that the sheriff is protected by qualified immunity [Cornell LII backgrounder] in this case. The sheriff cannot be personally liable for any damages for a causal relationship between the lack of reappointment and free speech because authoritative law is not sufficiently clear as to whether political correspondence is necessary in general for the completion of sheriff duties.

Free speech in the virtual world has become a hotly contested subject. In February, JURIST Guest Columnist Felix Treguer discussed the shifts in virtual free speech in France [JURIST op-ed]. Online speech has also become an issue during the Arab Spring, including the Egyptian Revolution, the Libya Conflict and the Syrian Civil War [JURIST features], where individuals used social media to arrange large scale civil disobedience and document violent encounters with authorities.

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