The Civil Rights Law & Policy Blog on Facebook Litigation

There is a terrific resource edited by Andrew M. Ironside called the Civil Rights Law & Policy Blog.

Professor Ironside recently had this post:

[T]he Fourth U.S. Circuit Court of Appeals ruled that a Facebook “like” is protected First Amendment speech. The question arose after several employees of a sheriff’s office filed a lawsuit claiming that they had been fired for clicking “like” in support of their boss’s challenger, which violated their First Amendment rights.

Prominent UCLA law professor Eugene Volokh said, “You’re expressing the relevance of a message and that’s good enough.” The court agreed. “Liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it,” wrote the Court. “It is the Internet equivalent of displaying a political sign in one’s yard, which the Supreme Court has held is substantive speech.”

The Fourth Circuit’s ruling could have a dramatic effect on our right to vote jurisprudence. Clicking “like” on Facebook is not materially different from casting a vote. In fact, unlike clicking “like,” historically voting was often actually spoken. Indeed, the historical record indicates that at the time the Founders enshrined our democracy in the Constitution, the most common method of voting was the public expression of one’s choice.

Even before future colonists began to experience the religious and cultural oppression that would lead them across the Atlantic in search of new freedoms, the English had established this method in elections to the House of Commons. Known as viva voce, this process began when the sheriff called for a vocal public proclamation—or showing of hands—expressing support or opposition for a candidate. If the election remained in dispute, individual voters would voice their choices to an election official, who would record the voter’s name and selection in a poll book.

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