On Scalia and Facebook ‘Liking’: The mind reels

I was motivated Saturday following news of  the death of Justice Antonin Scalia to look into the justice’s voting record on First Amendment matters. What I found vexed me.

Scalia, it seems, (and I am no scholar on these matters) was an unapologetic defender of First Amendment religious values. In fact, in one of the final speeches before his death he said that while government could not favor one religion over another, he saw no constitutional restriction against favoring religion over non-religion.

On the subject of free expression rights, however, he had a somewhat more more nuanced opinion. He voted with the majority in Hazelwood and in one of his more humorous opinions denied to a group of men’s establishments First Amendment protection for their nude dancers. You have to admit, he was a dazzling writer.

I must admit the Hazelwood decision has always perplexed me, if only for the labyrinth of analysis needed to determine its applicability. As a college adviser it applies little to me, but from what I can see the more hands-off the HS adviser is, the better protection the district has against libel or other actions.

I try to convince my administration that the need for prior review evaporates if the best journalistic practices are followed — meaning objectivity and fair sourcing, recognizing bias and working to avoid, respecting the private lives of private people until their actions make them fair game. How will students learn these practices unless we let them practice them?

Again, college media is different species of fish than HS, and to my high school colleagues in Kent’s program, good luck.

And now for something completely different (hat tip to anyone who recognizes the Monty Python reference).

In researching Scalia, I came across a case from 2013 that I thought was worth a mention. I recognize it’s old news but I bring it up only because I am amazed at the amount of litigation required to arrive at the decision.

That year, a U.S. Circuit Court of Appeals ruled that a Facebook “like” is protected by the First Amendment, claiming it was the functional equivalent of posting a political sign on your front lawn. The decision didn’t surprise me; in fact, it seems wholly logical. What shocked was that a lower court judge initially determined that “liking” was not protected, and he had to be reversed on appeal.

It showed me how murky some First Amendment litigation is, and maybe it’s a question for Mark Goodman. The trial judge actually agreed that Facebook posts are constitutionally protected, just not like the “like” widget. Makes you wonder where all this is going, especially for high school students.


One thought on “On Scalia and Facebook ‘Liking’: The mind reels”

  1. I wonder what students would have to say about the litigation regarding Facebook liking. It’s tough to teach media law when that law is still scurrying to catch up to new technologies and it takes a lengthy path up through the courts to sort it all out. Honestly, when I try to get my students to understand how new media fits into reporting, there’s usually a sizable number that says they never really thought about that, and just assumed if they were using their personal devices, they could post, like, and share anything they wanted “because of free speech.”


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