Academic journal article Missouri Law Review

Social Networking and Freedom of Speech: Not "Like" Old Times

Academic journal article Missouri Law Review

Social Networking and Freedom of Speech: Not "Like" Old Times

Article excerpt

Bland v. Roberts, 857 F. Supp. 2d 599 (E.D. Va. 2012)


Facebook is a website that allows users to share photos, news, stories, and personal anecdotes from their daily lives in an easy to follow online community. (1) The website has developed a huge following and just recently reached the milestone of having over 1 billion users worldwide. (2) Each Facebook user has a "profile" that typically shares the user's name, a brief biographical background, pictures the user has uploaded to the site, a list of the user's Facebook friends, and a list of Facebook "pages" the user has "liked." (3) Unlike personal "profiles," Facebook "pages" are set up for various groups, such as businesses, organizations, religious groups, political groups, music groups, sports teams, and brands in order for them to connect with users and share that group's messages or simply represent their respective identities. (4)

With such a large amount of users logged on to Facebook at any given time, the website has become an extremely efficient way to communicate messages, both commercially and personally. Accordingly, the website has become one of the central means of conveying a message throughout the world. On average, Facebook processes 2.7 billion "likes," 300 million photo uploads, and 2.5 billion status updates every day. (5) As Facebook continues to grow and provide an effective and efficient forum to present thoughts and ideas, it is essential that the courts protect these expressions of speech through the First Amendment.

In Bland v. Roberts, the United States District Court for the Eastern District of Virginia was presented with the issue of whether "liking" a page on Facebook is speech protectable by the First Amendment. (6) This Note argues that the court's holding, that "liking" something on Facebook is not worthy of First Amendment protection, is a disturbing result that endangers one of our most fundamental rights guaranteed by the Constitution. In Part II, this Note analyzes the facts and holding of Bland v. Roberts. Next, in Part III, this Note describes in detail how Facebook operates and explains the legal background of the first amendment and its interaction with online communication. Part IV examines the court's rationale in Bland v. Roberts. Lastly, Part V explains the flaws in the court's reasoning and provides suggestions to courts facing similar controversies in the future.


Plaintiff Daniel Ray Carter, Jr., worked in the Hampton sheriffs office in Hampton, Virginia, as a sworn, uniformed deputy sheriff. (7) Defendant B.J. Roberts was the sheriff in that office. (8) In November 2009, Roberts was up for re-election for the sheriff position. (9) Jim Adams, former lieutenant colonel in the sheriffs department, opposed Roberts in the election. (10) Roberts won the election and subsequently decided not to reappoint Carter. (11) Carter alleged that in the months leading up to the election, Roberts learned that Carter expressed support for his opponent, Adams. (12) On March 4, 2011, Carter filed suit against Roberts "in his individual and official capacities" in the United States District Court for the Eastern District of Virginia alleging that Roberts violated his First Amendment rights by retaliating against him for supporting Adams in the election. (13)

Specifically, Carter alleged that Roberts retaliated against him for his expressions of support for Adams via Facebook. (14) Carter argued that this retaliation violated his right to free speech. (15) Carter claimed that he sent a message of support to Adams on his Facebook page and also "liked" Adams' page. (16) Roberts conceded that he was aware of Carter's activity on his opponent's Facebook page. (17)

Roberts claimed that his failure to reappoint Carter after his re-election was not retaliatory in nature. (18) He asserted that his decision was because of Carter's "unsatisfactory work performance or for [Roberts'] belief that [Carter's] actions 'hindered the harmony and efficiency of the [o]ffice. …

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