Everywhere the Internet goes, new legal problems are sure to follow. As social media expands and infiltrates our daily lives, society must grapple with how to extend the law to modern situations. This problem becomes increasingly pressing as more and more of our social interactions take place online. For example, Facebook has become a colossal gathering place for friends, families, co-workers, frenemies, and others to disseminate their ideas and share information. Sometimes Facebook replaces old institutions; other times it augments them. Where once a neighbor would show allegiance to a political candidate by staking a sign on the front lawn, a user now clicks Like on a candidate’s Facebook Page instead.
In 2009, a deputy sheriff was fired for doing just that. A U.S. district court, in an opinion that demonstrates the inability of the current legal framework to adequately address social-media activity, held that the termination did not violate the deputy sheriff’s First Amendment rights. The judge reasoned that clicking Like does not constitute speech – let alone protected speech – because it is not substantive.
This Article demonstrates that the court not only failed to follow well-established Supreme Court precedent, but also fundamentally misunderstood the technological consequences of clicking Like, which include textual statements as well as the symbolic thumbs up sign. Liking a political candidate’s Facebook Page is the twenty-first century equivalent of a campaign yard sign and, under the Supreme Court’s First Amendment jurisprudence, should be considered protected speech.