Facebook “Likes” and Free Speech

When I told a CNN reporter last week that surely, the Virginia case of a sheriff’s deputy fired for “liking” his boss’s opponent will be overturned on appeal, it didn’t occur to me that any reputable constitutional scholars would make a case to the contrary. But surprisingly, according to a story Monday in the Hampton Roads, Virginia Daily Press, First Amendment expert Robert M. O’Neil at the University of Virginia thinks the lower court ruling dismissing the deputy’s case could stand. Here’s how the Daily Press reported O’Neil’s comments:

O’Neil said he didn’t agree with Jackson when the judge seemed to indicate that “actual statements” were needed for something to qualify as free speech. But he said he agreed that more evidence is “crucial” to determine if someone was expressing a view by hitting the “Like” button.

“I am not sure that I would recognize that hitting the ‘Like’ button is an expression,” said O’Neil, who said he’s typically a strong supporter of the ACLU and free speech.

“Judge Jackson I think is correct,” he said. “‘Liking’ something isn’t sufficiently expressive, not by itself. There should some credible evidence of like or dislike that would create a context. I would expect evidence of intent, some context …more than simply pushing the ‘Like’ button.”

O’Neil said it was hard to know what the Court of Appeals would do, but he predicted that if the case ever got to the U.S. Supreme Court, “it would affirm Judge Jackson’s view” in some fashion.

O’Neil is no slouch — he’s a law professor emeritus at UVa, a former president of the university, and a former director of the Thomas Jefferson Center for the Protection of Free Expression. In a case where virtually every legal expert who has weighed in with an expectation that the District Court decision to dismiss will not stand, O’Neil’s input is a surprising reminder that there are two sides to any case. (But surely he’s wrong nonetheless!)