What Constitutes “Speech”?

This morning’s news included a report on a Virginia lawsuit brought by sheriff’s deputies alleging retaliatory firing in violation of their free speech rights. They claimed they’d been dismissed for supporting the Sheriff’s (unsuccessful) opponent in a recent election.

The law is pretty clear that public employees do not lose their First Amendment rights simply because they work for government. So long as they exercise those rights on their own time, and avoid behaviors that would compromise the terms of their employment, they cannot be punished for expressing political opinions or otherwise engaging in expressive conduct.

Here, the “conduct” was clicking the “like” button on the opponent’s Facebook page. The question before the court was whether “liking” something on Facebook amounted to Free Speech.┬áThe Judge said it didn’t, since no actual words were typed.

The Judge was wrong.

The courts have consistently held that the Free Speech clause of the First Amendment protects the expression of an idea. Marching in a parade, saluting–or burning–a flag, and yes, clicking the “like” button on Facebook, all express agreement and endorsement, and are protected expression. The only reason people want to prevent Nazis from marching is that they get the message, loud and clear. Same with flag burning; the message of disdain for our country is what offends us.

Some messages don’t require words.

The Sheriff obviously thought that “liking” his opponent’s page sent a message. And he evidently understood it.


  1. Not to mention that the law doesn’t require a lot out of the message being communicated. The judge blew it in this ruling. Clicking “like” on someone’s Facebook page is the tech equivalent of putting a candidate’s bumper sticker on your car.

  2. Not to mention that in addition to the violation of the deputies’ free speech rights, clicking on the “Like” button on Facebook would seem to implicate the associational rights of the deputies as well.

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