In a decision that runs counter to a large body of Supreme Court precedent on both Internet and non-verbal speech, a Virginia district court has held that “liking” a candidate for public office on Facebook is not entitled to First Amendment protection.

The case involves employees of a Virginia sheriff’s office who were less than enthusiastic in their support of the incumbent sheriff in his re-election campaign. At least one of the employees, a uniformed deputy sheriff, went so far as to “like” the Facebook page of the incumbent’s opponent. The incumbent was ultimately re-elected and decided not to retain the plaintiffs, justifying their dismissal on budgetary grounds. Plaintiffs claimed that their termination was in retaliation for their exercising their First Amendment rights.

The Court found that there was no evidence that the incumbent was aware of the plaintiffs’ allegedly protected activity (placing a bumper sticker in favor of his rival on one of their cars, attending a campaign event) with the exception of plaintiffs’ Facebook activity. However, the Court held that the incumbent’s knowledge of the Facebook activity was irrelevant because “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” The Court contrasted this case to Mattingly v. Milligan and Gresham v. City of Atlanta, where Facebook posts were accorded First Amendment protection, because those cases involved “actual statements . . . . The Court will not attempt to infer the actual content of [plaintiff’s] posts from one click of a button on [a] Facebook page.”

As “I like Ike,” perhaps the most famous political slogan of all-time, reminds us, liking a particular political candidate, however it may be expressed, is indisputably at the very core of First Amendment activity. Moreover, the Supreme Court has repeatedly held that the First Amendment protects both non-verbal speech (Texas v. Johnson (flag burning), Tinker v. Des Moines Indep. Cmty. Sch. Dist (wearing black armbands)) and Internet speech (ACLU v. Reno). Although unlikely to withstand an appeal, this case nevertheless has profound implications for social media platforms and any Internet forum.

The case is Bland v. Roberts, No. 4:11cv45 in the United States District Court for the Eastern District of Virginia