Laura Hodes had an interesting commentary piece last week concerning the upcoming Gwendolyn & Co. v. Blacconiere case, wherein a beauty school is suing some of its students for comments they wrote on a private Facebook account. You can read the complaint here.

The students wanted a place to collectively vent about their school’s teachers, curriculum, and staff, so they made a Facebook account. As of the time the lawsuit was filed, the account had a total of ten friends. The lawsuit alleges that the postings caused (and continue to cause) severe emotional suffering and distress, declining business, and permanent damage to the plaintiffs’ personal and professional reputations in the eyes of “the public, their clients, and other members of their profession.”

Now, Ms. Hodes discusses Layshock and Doninger as related cases, but I can’t quite agree: in both of those cases, the schools were asserting affirmative defenses when the students sued the schools for suspending them for their off-campus speech. In this case, the school did not attempt to suspend or punish their students (as far as we know), but instead filed a complaint against the students. Tinker wouldn’t apply unless the school attempted to discipline the students for their speech.

At any rate, I’m putting my money on the students winning, even if it means having to take it up on appeal. They made comments that very few people could actually see, as the profile was set to private and the account had only ten friends. Moreover, after looking at the comments they made, it’s hard to see them as anything but protected opinion. The statements were clearly hyperbole and do not, in my opinion, convey a sense that they’re allegations of truth. Moreover, as far as I’m aware, most courts have taken a broad view of protected opinion for things posted online, particularly on blogs, forums, and chatrooms.

The plaintiffs know they have no case, which is why they’re suing under a per se theory. I find it incredibly hard to believe that a jury would find postings on a Facebook account that was viewable by ten people caused severe emotional suffering, affected their business at all (especially given the fact that the people with access weren’t customers), and caused any kind of damage (not to mention permanent damage) to their professional reputations in the eyes of the public (who had no access to the statements), their clients (who had no access to the statements), or other members of their profession (even counting the students as members of the profession, very few had access to the statements).

At any rate, this should be a lesson to everyone: be careful when using social networking. While I think the students were free to express themselves in the way they did, however poorly thought-out that may be, they still have to defend themselves. Lawsuits cost time and money, even for frivolous claims. Time to go delete my Top Ten Reasons My Tort Professor Is Inflicting Intentional Emotional Distress (okay, that’s not a real article, but still!).

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