Just as giving a thumbs-up is a form of speech, so is clicking an online button virtually doing the same thing on Facebook. So ruled a court today. Via Ars Technica:
In a unanimous decision on Wednesday, the Fourth Circuit Court of Appeals reversed a lower court's decision, declaring that a Facebook "Like" is protected under the First Amendment, like other forms of speech.
The Virginia case involves a former deputy sheriff in Hampton, Virginia, who claimed that he had been fired for "liking" his boss' rival in a political campaign for county sheriff. In the original lawsuit, a federal district judge tossed the case, saying that a Facebook "Like" was "insufficient speech to merit constitutional protection."
Facebook itself filed an amicus brief in the case, urging the appeals court to reconsider the lower court's decision.
There were actually six plaintiffs in the case (pdf) who said the sheriff (who is also accused of using his office to further his own re-election efforts) refused to reappoint them after he won re-election. The most relevant paragraph of the 81-page ruling, noted by both Ars Technica and legal scholar Eugene Volokh:
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. In the context of a political campaign's Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.
Volokh explains that though the court ruled a Facebook like counts as speech, it doesn't necessarily mean there can't ever be consequences for for government employees for clicking that thumbs-up:
I say this is "presumptively protected speech," since in the context in which arose — speech by a government employee — the government as employer may sometimes discipline employees based on their speech. But even if the government may sometimes restricting Facebook "likes" this way, the Fourth Circuit decision rejects the argument that Facebook "likes" are just too empty to be covered by the First Amendment at all.