In my January 5 Mashable article “5 Predictions for Social Media Law in 2012,” I described the chaos that is the current state of the law on social media posts by students. Public high school (and even middle school) students have been suspended or expelled for things they’ve written online about teachers, administrators, and fellow students. When those students have turned around and sued the school for violating their First Amendment right to free speech, the results have been all over the map. This is likely to remain true until the Supreme Court takes up the issue directly, which I predicted “is unlikely to happen as early as 2012.”
And indeed, on January 17, the Supreme Court declined to hear three closely watched appeals raising these precise issues. In one case, an eighth-grade girl created a fake, “vulgar” profile of her principal, with his photo, that portrayed him as a sexual predator. In the second case, a Pennsylvania high school senior also created a fake profile for his principal, calling him a drug user, a “big fag” and a “big whore.” Both profiles were held to be protected speech. But in the third case, the punishment of a West Virginia girl was upheld after she created a Facebook group dedicated to mocking a fellow student as a “slut” who had “herpes.”
The Supreme Court decided not to hear the appeals, which means the decisions stay in place. As usual, the Court made no comment when issuing its decision, and it is not a ruling on the merits of the appeals. Its reasoning is anyone’s guess.
Personally, I suspect that most of the Justices feel this is an issue that should be allowed to percolate for a while longer in the lower courts, to see if some pattern or standard emerges. They could also be waiting for a perfect test case–one in which the facts of the case raise all of the important issues on this topic in a way that allows the Court to issue a clear ruling. These types of cases are heavily fact-dependent and already messy enough; the Justices want to know that their effort will be worthwhile in setting precedent that future courts can follow.
Nevertheless, because students will never stop finding new and creative ways to insult faculty, administrators, and other students, I suspect that the Court will eventually be forced to take one of these cases. And there are still 11 months left in the year, so I have plenty of time to be wrong in my prediction of when this will happen.