Lawyer vows to appeal ruling that says Facebook is not 'like' free speech

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Judge rules Facebook 'Like' is not free speech

Tamara Holder & Doug Burns discuss new legal challenges relating to social media.

A Virginia sheriff's deputy who was fired for "liking" his boss' opponent on Facebook likes his chances in a federal lawsuit claiming his click was constitutionally protected.

The deputy, Daniel Ray Carter Jr., and five other employees were fired after clicking the “like” button on Facebook in support of Jim Adams, their boss’ opponent in the race for Hampton sheriff in 2009. Carter and the other five terminated employees have been fighting in the courts ever since, saying their firings violated their right to free speech. But a May decision from U.S. District Judge Raymond A. Jackson did not go in their favor.

“It is the Court’s conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” Jackson wrote in his opinion.

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Carter's legal team filed an appeal last week with the U.S. Court of Appeals and is hoping a panel of judges will overturn the previous ruling.

“I think the Virginia court blew it,” attorney Richard Roth of the Roth Law Firm told FoxNews.com. “You’re pressing a like button. You’re pressing a button that says ‘I like the ad or the candidate.’ I don’t know how the court can say it’s not protected speech.”

Facebook and the ACLU have recently gotten involved in this suit, both filing an amicus brief, which states their support for First Amendment protection in this particular case.

“It is essential that the courts understand that these new ways of speaking be protected by the First Amendment just as much as our old ways,” ACLU attorney Aden Fine told FoxNews.com

In the filed brief, Facebook said the “like” was “the 21st-century equivalent of a front-yard campaign sign.” They continued to say, “liking a Facebook Page is entitled to full First Amendment protection. The district court reached a contrary conclusion based on an apparent misunderstanding of the way Facebook works.”

Those in defense of Sheriff B.J. Robert, who won his re-election and then fired the six employees, claim that because no actual speech was involved, it does not warrant protection.

“In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record,” Jackson wrote.

Robert's attorney Jeff Rosen told FoxNews.com Jackson got it right.

“We agree with Judge Jackson’s two-fold conclusion that the action is not a protected substantive statement and because the law is not clearly established, Sheriff Roberts is entitled to qualified immunity,” he said.

But the Supreme Court has ruled that actual words are not required for First Amendment protection, notes Roth.

“When you burn a flag, it’s a statement. When you put your hands up in the air, it’s a statement,” said Roth. “The court is saying he didn’t say anything but it is a statement.”

If the appellate court determines that “liking” a Facebook page is free speech and therefore protected, that raises the question of whether the firing was legal. Robert's attorneys may argue the employees were undermining him, giving him cause to can them.

“You can’t fire someone if they are protected constitutionally,” said Roth. “You can fire them for insubordination. That’s a tough thing to answer.”

Carter and the five other plaintiffs could be rewarded a lot of money if they are successful: economic damages pay from the day they were fired and pay from the day of the trial onward. They could also receive pay for emotional distress and legal fees.

“It’s clear that this is a new form of speech, but just because something is new doesn’t mean it should be treated differently,” said Fine. “The judge simply got this one wrong.”

The circuit court will hear the case sometime this fall. And when asked if he expected the appeal to be successful, Roth responded, “I believe so, but it’s like asking me what the weather is going to be like tomorrow. It’s sort of hard to give you a clear answer.”