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Constitution also protected sheriff in Facebook “like” case

September 19, 2013 by NCC Staff


A federal appeals court decision to grant protected free speech status to the Facebook “like” button contained another important element, involving a less-publicized constitutional amendment.

Facebook_like_thumbOn Wednesday, the 4th Circuit Court of Appeals said that several employees who were fired by their boss, a sheriff running for re-election, for “liking” his election opponent had a First Amendment case.

In an 81-page decision, the court said that Sheriff B.J. Roberts erred when he terminated the employment of two employees for “liking” his opponent, Jim Adams, in the 2009 election, by going on Adams’ Facebook campaign page.

Link: Read the decision

"On the most basic level, clicking on the 'like' button literally causes to be published the statement that the User 'likes' something, which is itself a substantive statement," the opinion from Chief Judge William Traxler said, on behalf  of a three-judge panel.

The court cited the case of City of Ladue v. Gilleo, which allows someone to put a political sign on their front lawn as a protected act of free speech.

But the two employees and other plaintiffs in the case won’t be able to collect financial damages directly from Roberts, at least for now, because Roberts is protected by the 11th Amendment under the concept of sovereign immunity.

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State,” the amendment reads.

Link: 11th Amendment explanation from the Library of Congress’ Annotated Constitution

The plaintiffs had argued that they should be able to pursue monetary claims directly against Roberts in his official capacity as sheriff.

The court said they could seek to be reinstated at their former jobs, but the 11th Amendment protected Roberts from financial penalties.

“As we have explained, however, to the extent that the claims seek monetary relief, they are claims against an arm of the State. Thus, to the extent that the claims seek monetary relief against the Sheriff in his official capacity, the district court correctly ruled that the Sheriff is entitled to Eleventh Amendment immunity,” said Traxler.

Facebook itself and the American Civil Liberties Union were involved in the case, which had generated a lot of interest after District Court judge Raymond A. Jackson had initially ruled that “likes” didn’t constitute enough content to be considered a statement covered by the First Amendment and they were “insufficient speech to merit constitutional protection.”

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