Social Media: Instructional Imperative or Legal Liability?

Beth K. Godett, Ed.D., J.D.

presented at the Education Law Association Annual Conference

San Diego, California

November 10, 2017

The author recognizes Nicole Snyder, Esq., of Latsha Davis & McKenna, P.C., and MaryEllen Maatman, Esq., of Delaware Law School, and Michael A. Davis, Esq., as well as numerous others in

the fields of education, law, and beyond, for their contributions and editorial guidance in support of this study.

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Both. But there’s more.

Social media has become, for many, the primary conduit to news and to staying

connected with friends and family. Despite obvious concerns about the integrity of sources and

shared material, many have embraced blogs, tweets, forums, and an ever-expanding litany of

options for quick and widespread communication. It even appears that President Donald

Trump’s use of Twitter as a White House press substitute has further endowed social media

platforms with a legal legitimacy, perhaps an unintended result of his early morning postulations,

as a spokesperson from the U.S. National Archives was reported to have advanced the idea that

“posted tweets are considered presidential records” (Johnson, 2017).

Support for this idea comes from the Presidential Records Act of 1978 (PRA), which

outlines ownership, management, and control of Presidential records, as well as defines the scope

of both “Presidential records” and “personal records” created by a President to include

any documentary materials relating to the political activities of the President or members of

the President’s staff, but only if such activities relate to or have a direct effect upon the

carrying out of constitutional, statutory, or other official or ceremonial duties of the

President . . . [not including] ‘personal records’ mean[ing] all documentary materials, or any

reasonably segregable portion thereof, of a purely private or nonpublic character which do

not relate to or have an effect upon the carrying out of the constitutional, statutory, or other

official or ceremonial duties of the President (Presidential Records, 2014).

Additionally, the Presidential and Federal Records Act Amendments of 2014 (H.R. 1233),

an update to the PRA, “[s]trengthen[s] the Federal Records Act by expanding the definition of

Federal records to clearly include electronic records”; “[c]onfirm[s] that Federal electronic

records will be transferred to the National Archives in electronic form”; and “[e]mpower[s] the

National Archives to safeguard original and classified records from unauthorized removal”

(National Archives, 2017).

This legislative support was passed to help to ensure that our nation will not again suffer

from the misappropriation of documents that relate to and are essential to the proper functioning

of our democracy. The idea that Presidential tweets can be included as Watergate tapes were

during Nixon’s administration brings an important focus to the significance of social media as a

communication tool.

To consider whether social media is an “instructional imperative” and, as with President

Trump’s tweets, look carefully at the extent of potential legal consequences such use portends, it

is necessary to examine this growing accumulation of communication tools and analyze its

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relevance among our youth. Is it merely an education adjunct, or something greater? To answer

that question, as well as address the topic of this discourse, it is important to look at social media

in the greater contexts of technology, teaching curriculum and pedagogy, and past and potential

opportunities for litigation based upon the use of social media in an educational milieu.

I. The technology revolution . . . prelude to an “instructional imperative”

The designation “instructional imperative” is extremely deferential, strong, and

unyielding. Those either working in the field of education or impacted by it in some way realize

that there is very little in this field given such reverence. Anointing any pedagogical strategy or

tool with such a title requires setting the stage. We need to look back to the 1970s, if not to its

prequel, for perspective.

The 70s marked computers’ emergence as society’s “great divide,” initiating distinctions

between users and nonusers, and related proficiency levels within each group. Futurist Marc

Prensky considered technology’s influence on society by separating people into two classes

according to their place in time and their anticipated ability to embrace this new phenomenon.

“Digital natives” were those born into the world after technology had made its entrance (AT);

“Digital Immigrants” were those who came before (BT), those who (sometimes unwillingly)

emigrated to unknown shores by virtue of professional need, curiosity, or connections to their

children.

Prensky noted that digital natives are students of a different sensibility than would have

been anticipated in traditional classrooms, who can be relied upon to challenge school norms and

expectations. “Today’s students are no longer the people our educational system was designed

to teach,” he wrote (Prensky, “Digital Natives, Digital Immigrants Part 1,” p. 1). Prensky went so

far as to make the case that education AT has transformed learners and learning by fostering the

development of something he termed “digital wisdom,” a combination of both the acquisition of

“cognitive power” and the “prudent use of technology to enhance our capabilities.” The

advanced capabilities brought on through digital access and knowledge, he said, “[help] us

perform more complex analyses than we could unaided, and [increase] our power to ask ‘what

if?’ and pursue all the implications of that question” (Prensky, “H. Sapiens Digital,” p. 1). His

work distinguished AT students from BT students, setting a very different bar for academic

achievement and, indeed, for communication both inside and outside the schoolhouse walls.

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Prensky called the advent and dissemination of digital technology toward the end of the

20th century a “singularity,” “an event which changes things so fundamentally that there is

absolutely no going back” (Prensky, “Digital Natives, Digital Immigrants Part 1,” p. 1). A

similar term used to describe such a phenomenon would be a “watershed” moment in time. The

term “watershed” has been applied to historical events such as the storming of the Bastille and

the American Revolution; medical breakthroughs such as the smallpox vaccine; inventions such

as the steam engine and the printing press; and seismic shifts in religious belief such as the

Reformation and the birth of Jesus (“Top 10 Watershed Moments in History,” 2010). While

there is no dearth of definitions that either mark an event as significant for all time or relegate it

to a place of historical insignificance, perhaps the simplest description, one that allows for the

greatest interpretation, is to say that a “watershed” moment is “a crucial dividing point, line, or

factor” (Merriam-Webster, “watershed,” n.d.). Whether that moment is an easily identifiable,

clear-cut line in the sand or a series of related events remains to be discussed in terms of the

sociological constructs promulgated by society, in general, and noted minds, in particular.

Contrary to what its name implies, the oft-heard reference to a “digital divide,” does not

define technology as a watershed moment in history. Rather, it marks the discrepancy between

access to technology and the Internet that distinguishes the “haves” from the “have-nots.” As

recently as March 2017, an article in TIME refers to the digital divide as “[t]he collective deficit

in opportunity, education and prospects—everything implied in ‘being connected’” (Vick, 2017).

Likewise, the introduction of ENIAC (Electronic Numerical Integrator and Computer) in

1943 and the development of various industrial digital capabilities do not a watershed make—

especially not in education where it took until 1978 for computer technology to burst onto the

school scene with the introduction of Radio Shack’s TRS-80 (“Timeline of Computer History,”

2017). The steady stream of hardware and its sometimes frustratingly unique software, in fact,

begs the question whether technology in schools is, and has been, a cultural change or, simply,

an additional supply line in district budgets. However, any revolution needs its arms, in this case,

its tools. The micro-impact of technology on schools has, clearly, been the new “stuff” in the

form of hardware, software, tech labs, and the like. The macro-impact is yet to be determined.

How long can it take for a watershed to evolve? Can we identify a specific element or

place in time from which there is no turning back? Some of the great futuristic minds of the past

century anticipated the coming of technology and its potential to change the world. Buckminster

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Fuller, the great American architect and systems theorist, envisioned, in the 60s, a “world game,”

a place where individuals or teams of people came and competed, or cooperated, to “[m]ake the

world work, for 100% of humanity, in the shortest possible time, through spontaneous

cooperation, without ecological offense or the disadvantage of anyone” (“About Fuller: World

Game,” n.d.). His “game” required that the players have access to information, as well as the

tools for manipulating that information. It required access to a comprehensive database.

They needed an inventory of the world's vital statistics--where everything was and in what

quantities and qualities, from minerals to manufactured goods and services, to humans and

their unmet needs as well as capabilities. They also needed an information source that

monitored the current state of the world, bringing vital news into the “game room” live. None

of this existed when Fuller began talking about a world game. And then something funny

happened on the way to the twenty-first century: CNN, personal computers, CD ROMS, the

Internet and worldwide web, supercomputer power on personal computers and reams of data

about the world, its resources, problems and potential solutions started to bubble to the

surface and transform the world and the way we communicate, do business, research and

govern (“About Fuller: World Game,” 2017).

Marshall McLuhan, a media theorist who died in 1980, was a prolific writer and observer

of the changing AT landscape. McLuhan

wrote with no knowledge of galvanic skin response technology, terminal node controllers, or

the Apple Newton. He might not have been able even to imagine what a biomouse is. But he

pointed the way to understanding all of these, not in themselves, but in their relation to each

other, to older technologies, and above all in relation to ourselves . . . (Gordon, 2002).

It was McLuhan who was responsible for bringing the world’s attention to the importance

of the medium by which messages were communicated—the technology used. It was McLuhan

who spoke of what emerging technologies could do that had never been done before.

Ours is a brand-new world of [all-at-once-ness]. ’Time’ has ceased, ‘space’ has vanished. We

now live in a global village…a simultaneous happening. . . . We have had to shift our stress of

attention from action to reaction. We must now know in advance the consequences of any

policy or action, since the results are experienced without delay. Because of electric speed, we

can no longer wait and see. . . . At the high speeds of electric communication, purely visual

means of apprehending the world are no longer possible; they are just too slow to be relevant

or effective. . . . Information pours upon us, instantaneously and continuously. As soon as

information is acquired, it is very rapidly replaced by still newer information. . . . We can no

longer build serially, block-by-block, step-by-step, because instant communication insures

that all factors of the environment and of experience co-exist in a state of active interplay

(McLuhan and Fiore, 1996, p. 63).

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There is no question that the evolution of digital technology has been a driving force for

change in our world. However, was it the change in the education world that many anticipated it

would be? One only need look at classroom teaching pedagogy employed in our schools today.

Despite that our student clients have, at this point in time, more fully evolved from digital

immigrants to digital natives, and most of our teachers as well, education is still coping with the

move from print text to digital (and, some may argue, not so well). Some of this discomfort is

outright frustration owed to funding which restricts the consistent provision of resources to

students in schools across our country, irrespective of economic and demographic differences. A

generational preference for having learning materials “in hand” in a manner that invites tactile

browsing as opposed to online searching is also discomforting.

Most subtly, and with potentially the most far-reaching impact, is a change in how

communication takes place and how information is delivered and manipulated—and this has

generated significant unease among educators who are reluctant to exchange what has been most

comfortable for the less predictable. McLuhan’s reference to old information’s being replaced

by “still newer information” has failed to gain the confidence of classroom pedagogy. However,

Prensky’s digital wisdom tells us that increased amounts of information/data require us to be able

to process them differently as we cannot possibly manage everything in the manner to which we

were accustomed. Add to that Buckminster Fuller’s “knowledge doubling curve” and one can

begin to appreciate the monumental impact of technology and its requisite impact on education.

It was Fuller who was responsible for noticing, around 1900, that knowledge approximately

doubled every century and every 25 years by the end of World War II (Schilling, 2013). As of

2013, numerous websites put 13 months as the amount of time knowledge doubles, with caveats

stating that different types of information double at vastly different rates. Extensive Internet

searching resulted in difficulty even ascertaining a guess as to the doubling of knowledge in

2017.

In his book Understanding Media, McLuhan addresses change in education and speaks of

our current approach to learning as dating back to Plato. It was Plato, McLuhan said, who

moved learning from the ritualized memorization of the works of poets such as Homer, in a

preliterate society, to a curriculum based upon ideas accessible after the development of a written,

phonetic alphabet, which McLuhan termed “education by classified data” (McLuhan & Gordon,

(Ed.), 2015, p. 12). McLuhan talks about the arts as being the predictor of societal trends,

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including social and technological developments. He quotes poet Ezra Pound as saying the artist

is “’the antennae of the race’” and compares the prescient capabilities of the arts to the use of

radar in World War II as an early warning system to help prepare for enemy attacks, reinforcing

the idea that new information gives way to, or at least coexists with, the old.

When radar was new it was found necessary to eliminate the balloon system for city

protection that had preceded radar. The balloons got in the way of the electric feedback of

the new radar information. Such may well prove to be the case with much of our existing

school curriculum, to say nothing of the generality of the arts. We can afford to use only

those portions of them that enhance the perception of our technologies, and their psychic and

social consequences (McLuhan & Gordon, (Ed.), 2015, p. 14).

Does our current way of educating come at too high a cost—not in the financial sense,

but from the perspective that it fails to recognize and utilize societal trends, patterns, and

technologies?

As an English teacher required by my district in the late 70s to demonstrate computer

literacy on those TRS-80s, I quickly became aware of horizontal differences in thought and

communication processing that would, indeed, be crucial to my role in the classroom. You see, I

wrote my dissertation, ironically titled, Computer Use in Education, in the 80s, in the days when

I didn’t own a computer. My “cut and paste” was an ever-growing line of taped-together

segments cut from yellow legal pads that stretched across my basement floor. That was how I

visualized the relationship between each idea I was communicating—and the “cut and paste”

was, itself, quite literal! Those were days when we could require that students provide “drafts”

of their papers. As use of technology increased, it quickly became evident that drafts merged

into each other, the irresistible urge to “live edit” pieces overtaking the evolutionary process of

rough draft to final copy. Writing became more fluid; the challenge for the teacher was to note

the thinking process that transformed ideas into masterpieces.

Software providers and textbook developers likely had a different plan in mind from that

which eventually evolved. Textbooks grew into print copies with supplemental resources on

disks, including assessments. The uniformity of software templates began to intrude on freestyle

innovation that challenged expression. Today’s administrators who advocated for the wholesale

purchase of whiteboard/Smartboard technology are hard pressed to provide compelling examples

of why schools couldn’t do without this technology that, for many, was used merely as projected

worksheets.

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So, does all this a watershed, a singularity make? Or have the earliest computers and

digital advancements since the 1940s merely been the trappings of a non-starter, an historical

bluff, as it were—to quote Shakespeare’s MacBeth, “full of sound and fury, Signifying nothing”

(Act V, Scene 5).

I would venture to say that there are certain events that, by virtue of their very nature, are

better termed singularities, occurrences captured in one quick moment of time, that have changed

the course of history. Some events, however, gather momentum in fits and starts. These events

may more appropriately be termed “watersheds” because, with respect to that term’s alternate

definition as “an entire river system” (National Geographic Society, 2017), they more closely

resemble a confluence of events that, together, create the seminal watershed moment. That said,

citing any one aspect of digital technology as it relates to change in our society today would be

inadequate, especially as it would take more than hardware, more than data-gathering resources,

to be the fundamental change from which, to echo Prensky, we can never return.

II. Social Media: Tools or Something Else?

“We shape our tools and thereafter our tools shape us” (Kuskis, 2013). This observation

by a Fordham University Professor of Communication and friend of McLuhan’s addresses the

“so what” of technology development and its various tributaries, giving it prominence in the

confluence of events contributing to a digital watershed.

With this in mind, it is helpful to recall Prensky’s formula for digital wisdom: acquisition

of cognitive power + prudent use of our technologies = digital wisdom: the ability to perform

complex analyses and ask the “what if” questions (Prensky, “H. Sapiens Digital,” p. 1).

For a technology, any technology, to have the power to shape civilization, there must be

some application of that technology that effects a change in society so great as to open the

possibilities for reframing thought and perception—the “what ifs.”

Johannes Gutenberg’s invention of the printing press made such an important

contribution to European society in 1455 because it addressed a need—it provided cognitive

power. More people were becoming literate, and Gutenberg’s press was a moneymaker that

provided mass access to the printed word. Historians credit the printing press with being a

motivating change of the Renaissance as new ideas could be spread much more quickly and

easily than previously hand-written documents allowed (Whipps, 2008). If there is any doubt as

to the watershed impact of this press for moveable type, “[i]t has been estimated that there were

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perhaps 30,000 books in all of Europe before Gutenberg printed his Bible; less than 50 years

later, there were as many as 10 to 12 million books” (“Gutenberg’s Legacy,” n.d.). Gutenberg

shaped the tool; his tool shaped the Renaissance by spreading the word.

An Internet search reveals an interesting, if not somewhat amusing, list of advancements

that lay claim to have changed the course of our lives and civilization in general. In addition to

the watersheds cited earlier, one might add, among other things, the invention of the wheel, fire,

roads, books, and drainpipes (Brompton, 2014); as well as organ transplants, robots and artificial

intelligence, electronic funds transfer, nuclear power, mobile phones, space flight, and genetic

engineering (Boutin, 2013). An argument remains, however, as to what particular advancements

have actually been so pervasive as to alter the way people think.

Influences strong enough to shape civilization are, of course, a subjective list. The

question for our consideration is whether social media can be awarded such stature—or whether

we have enough experience with that particular communication genre to be able to make that

determination at this point in time. Is significance determined by a specific number of tweets?

Hits on an Internet site? YouTube views?

I offer the following considerations as my own observational evidence and that shared by

education practitioners to support the notion that social media is more than just a tool. It has

changed the way we think and has brought us to different level of communication (with caveats

and in no order of priority):

1) The use of social media has afforded individuals “expert “status and has allowed them to

gain greater confidence that their point of view or skills matter.

Caveat: Self-aggrandizement has its consequences, especially when quality of thought

is compromised.

2) Greater awareness has developed of the need for, and availability of, support for each

person’s arguments.

Caveat: It is easier to find support for any argument, even though that support may be

harmful to others or counterproductive—or the argument may not be worthy of support

in the first place.

3) There is greater interdependency among people for the purpose of sharing thoughts and

ideas.

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Caveat: Personal confidence may be compromised if validation is dependent upon the

“number of hits.”

4) More thought has been given to and emphasis placed upon 1st Amendment freedoms of

speech.

Caveat: Accompanying responsibilities may be neglected or minimized; fear of the

government’s losing control may result in tougher standards that may chill speech.

5) The development of thought and idea is almost instantaneous.

Caveat: People will dedicate more of themselves to racing to be in the lead and will

spend less time and effort listening to others.

6) Networking has been made easier.

Caveat: The quality of one’s connections may be compromised and discretion limited in

favor of collecting “followers.”

7) Archiving and retrieving information, as well as gathering information quickly and from

an enormous range/variety of sources has been made much easier.

Caveat: Information never goes away.

8) Creativity has been enhanced as social media helps individuals find another place of

existence, a separate identity in this space.

Caveat: Such retreat can have its benefits, but also its dangers, including isolation and

unchecked influence.

9) Individuals and devices have become one.

Caveat: Disenfranchisement can result upon separation; use and appreciation of

responsibility in different settings is not a guarantee.

10) Emotional desensitization has taken place.

Caveat: Increases have been seen in bullying and violent behaviors, as well as

heightened levels of discourtesy in personal interactions.

11) There is lowered angst over communication with others

Caveat: A false sense and misperception of friendship and trust can develop.

12) There is greater opportunity to share common voices.

Caveat: Groupthink can more easily develop as social media users tend to gravitate

towards those with similar views to their own and are never challenged to listen to, and

consider, differences.

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Communication has evolved from oral/aural (spoken language), to symbolic (pictures), to

alphabetic. When communication occurred only through spoken language, it produced messages

that were boundless, directionless, horizonless. They appeared only in the mind and relied solely

on memory and acoustic space. Symbolic communication through pictures fostered a shared

understanding of meaning. With the advent of the alphabet, and, ultimately, print, much of the

mystery around shared thought was abolished. However, the shortcoming of this advancement

was that it virtually put an end to talk, as portable books encouraged privacy of thought,

isolation, and detachment. Where print did bring about continuity and connectedness among

those who were able to or wished to share, its benefit in this area went only so far as its

beneficiaries allowed. Literal interpretation meant that writing froze language because it made

ambiguity less likely. Analytical thinking was encouraged, but there was no obligation to engage

others.

In 1923 the world was introduced to a phenomenon that came to be known as “mass

media,” defined as “a medium of communication (as newspapers, radio, or television) that is

designed to reach the mass of the people” (Merriam-Webster, “mass media,” n.d.). This term

was a satisfactory explanation for radio and motion pictures (1920s) and television (1950s). It

even explained computers, the Internet, and the worldwide web (as introduced and used in the

1990s). The key to each of these media forms was that, for the most part, they were output-only,

one-sided communication where the emphasis was on “reaching” people in order to supply some

need such as information or entertainment.

“Social media” was a term first introduced in 2004 and was defined as “forms of

electronic communication (such as websites for social networking and microblogging) through

which users create online communities to share information, ideas, personal messages, and other

content (such as video) (Merriam-Webster, “social media,” n.d.).

What distinguishes social media from mass media is its interactivity. It relies upon

interaction between participants both in their interest in sharing information and in their

expectation of feedback or input from others. Social media opportunities evolve almost

instantaneously and have developed such complexity as to be able to afford participants access

that, in the past, would have come only at a significant cost. For example, one Washington-

based nonprofit interested in helping teachers share effective uses of education technology has

developed a “Research Map” that helps connect teachers and administrators with Harvard

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researchers (Dobo, 2017). At a time when professional development funds are scarce, teachers

and administrators have come to rely almost exclusively on social media to enhance their

practice.

Is all this enough to make the case that social media is an instructional imperative? Can

today’s educational system continue to justify preparing children to meet their future when that

system relies heavily on a lineal, isolating system of print communication that cannot be found in

any crystal ball, much less outside the schoolhouse walls? Why do students continue to be

taught using methods and accountability that are not synchronous with the rapid dissemination of

information and requirement for interaction that today’s world demands?

A quick analysis of daily communication would reveal, even to the most dedicated

technophobe, that the world operates on a social media platform unprecedented at any time in

recent history. Not only are media sources and opportunities readily available, they are expected

by both suppliers of information and the respective recipients of that information. So what is

stopping education from adopting the paradigm shift?

One could justifiably argue that, already limited by restrictive funding and accountability

measures, school districts fear embracing social media will open them up to more potential

litigation than they feel they are able to risk. The organic nature of social media may

compromise their control over curriculum, pedagogy, and, especially, student management.

Specifically, some legal concerns regarding the use of social media to advance learning in a

structured school setting include, but are not limited to:

1) The fact that the courts have been split in their judgments regarding social media cases

raised by both students/parents and staff leaves great uncertainty as to the framework

within which schools can operate. Appropriate boundaries to be used in structuring

policies or codes of conduct are unclear.

2) Likewise, as the Supreme Court has yet to rule on a social media case involving

students, staff, and schools, the courts, themselves, have inconsistent precedent upon

which to rely in making their judgments.

3) Schools find it difficult to stay ahead of the curve with the newest social media

platforms. Rules applied to one do not, necessarily, fit with others.

4) Where do Tinker’s “schoolhouse gates” begin and end? What constitutes a disruption

under the Tinker standard when it comes to social media?

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5) Similar to the first question in #4, specifically, where does a district’s obligation to

enforce current legislation (i.e. harassment, intimidation, and bullying) begin and end?

6) How can schools monitor student and staff social media use without stepping on First

Amendment rights, and where it is appropriate for them to do so?

7) What are a district’s obligations and rights relative to social media connections their

students may make beyond the school district that impact others in the district?

Answers to these questions can best be anticipated through a look at patterns in some of the

social media litigation that has already taken place.

III. Legal Liability Considered: Is it Worth the Risk?

Thomas Jefferson, in a letter dated July 12, 1816, to H. Tompkinson (AKA Samuel

Kercheval, a Virginia attorney who actively endorsed a convention for the purpose of amending

the state constitution), said,

[L]aws and institutions must go hand in hand with the progress of the human mind. As that

becomes more developed, more enlightened, as new discoveries are made, new truths

disclosed, and manners and opinions change with the change of circumstances, institutions

must advance also, and keep pace with the times. We might as well require a man to wear

still the coat which fitted him when a boy, as civilized society to remain ever under the

regimen of their barbarous ancestors (Quotations on the Jefferson Memorial, 2017).

There is no question that Jefferson, a quintessential voice of our democratic ideals and

constitutional mandates, would, were he here today, be a strong proponent for change in our

public schools that would “keep pace with the times.” Despite the potential struggles, as any

change brings with it uncomfortable adjustments to the status quo, Jefferson would undoubtedly

recognize the importance of schools’ keeping pace with methods of communication that bind

people of this generation—in this case, the acceptance and use of social media as not only an

appropriate tool, but a necessary one.

The pace at which social media has developed over the past two-to-three decades has

challenged the courts to keep up and has led to discrepancies in circuit court rulings, especially

on the basis of whether and how to apply the tests of the four foundational decisions in First

Amendment free speech related to schools: Tinker, Fraser, Morse, and Kuhlmeyer. Courts have

also been conflicted in their rulings interpreting laws and/or school policies based upon

vagueness and overbreadth.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) was the landmark

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Supreme Court case that first defined the boundaries of First Amendment protection afforded

students for speech at school. The facts of this case are that Marybeth Tinker, her brother, John,

and other students in the Des Moines School District made a plan to wear black armbands to

school in protest of the war in Vietnam. They did so despite the fact that the school

administration, having learned of the Tinkers’ plan in advance, instituted a rule against wearing

armbands to school. The students were suspended based upon the school’s concern that their

wearing armbands would cause a disturbance. While the lower courts upheld the school’s action

as reasonable, the Supreme Court ruled to protect students’ First Amendment rights to express

themselves, so long as such expression “neither interrupt[s] school activities nor [seeks] to

intrude in the school affairs or the lives of others” (Tinker v. Des Moines, at 514). Justice Fortas’

decision in Tinker is often quoted for saying that “[n]either students [n]or teachers shed their

constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker v. Des

Moines, at 506).

Three often cited landmark cases regarding freedom of speech and social media are Bell v.

Itawamba Cnty. Sch. Bd., 799 F.3d 379 (5th Cir. 2015); J.S. ex rel. Snyder v. Blue Mountain Sch.

Dist., 650 F.3d 915, (3d Cir. 2011); and Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650

F.3d 205 (3d Cir. 2011). These cases, among others, provide evidence of the courts’

equivocation about exactly where, especially in our Internet age, Tinker’s “schoolhouse gates”

begin and end, as well as the difficulties inherent in school officials’ assessment of when some

action or anticipated action would be interpreted as a “substantial disruption” to the educational

process.

The Fifth Circuit Court of Appeals in Bell articulates the ways in which social media

challenges school officials’ authority, saying that the advent of social media, smartphones, and

the Internet “confound[s] previously delineated boundaries of permissible regulations” (Bell v.

Itawanba Cnty. Sch. Bd., p. 19). Adding to this challenge, the court notes, is a landscape of

increasing violence in public schools, whether it be from harassment, physical violence, or any

other type of disturbance, and school administrators’ “affirmative duty to not only ameliorate the

harmful effects of disruptions, but to prevent them from happening in the first place” (Lowery v.

Euverard, p. 12).

Ruling in favor of the district, the Bell court established that, at least in the case of a rap

written by a student that speaks disparagingly of teachers/coaches, Tinker applies “when a

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student intentionally directs at the school community speech reasonably understood by school

officials to threaten, harass, and intimidate a teacher, even when such speech originated, and was

disseminated, off-campus without the use of school resources” (Bell v. Itawanba Cnty. Sch. Bd.,

p. 25).

Conversely, the third circuit in J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d

915, 939 (3d Cir. 2011), ruled for the student, concluding that Tinker would not apply to an off

campus incident involving a derogatory student blog, the subject of which was the school

principal, written on a home computer (Bell v. Itawanba Cnty. Sch. Bd., p. 39). The court used

the Tinker test to determine that the student’s MySpace blog did not constitute a substantial

disruption. The court further cautioned, on the basis of the Fraser standard, that “We must

tolerate thoughtless speech like J.S.’s in order to provide adequate breathing room for valuable,

robust speech—the kind that enriches the marketplace of ideas, promotes self-government, and

contributes to self-determination” (J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., p. 39).

The dissent in J.S. directly addressed the impact of social media on communication by

students and the difficulties faced by school administrators in drawing the line dividing free

speech from speech which causes substantial disruption.

Internet use among teenagers is nearly universal. . . . And social networking sites have

become one of the main vehicles of social interaction. . . . The line between “on-campus” and

“off-campus” speech is not as clear as it once was. Today, students commonly carry cell

phones with internet capabilities onto school grounds. . . . The majority embraces a notion

that student hostile and offensive online speech directed at school officials will not reach the

school. But with near-constant student access to social networking sites on and off campus,

when offensive and malicious speech is directed at school officials and disseminated online

to the student body, it is reasonable to anticipate an impact on the classroom environment. I

fear that our Court has adopted a rule that will prove untenable (J.S. ex rel. Snyder v. Blue

Mountain Sch. Dist., p. 65).

These final words in the J.S. dissent bring home an ultimate conflict among justices in the

circuit courts—a conflict that, perhaps, even epitomizes the Supreme Court’s reluctance to grant

certiorari to cases dealing with social media use and schools up to this point: where is the line

drawn? can a line be drawn when the sands keep shifting?

Layshock, a companion case to J.S. decided by the Third Circuit in the same year,

demonstrated the court’s decision to employ a different approach in deciding a similar case, even

though, as with J.S., it ruled for the student plaintiff in the end. Here, the court reasoned that it

would set a dangerous precedent to allow a school to discipline a student who used his

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grandmother’s computer to create a MySpace profile disparaging his principal. The court noted,

as the district agreed that Layshock’s actions did not result in a substantial disruption in school,

It would be an unseemly and dangerous precedent to allow the state, in the guise of school

authorities, to reach into a child’s home and control his/her actions there to the same extent

that it can control that child when he/she participates in school sponsored activities

(Layshock ex rel. Layshock v. Hermitage Sch. Dist., (2011), at 216).

Unlike in J.S., the court ruled that Tinker would not apply, saying instead that,

[N]othing in the First Amendment requires administrators to check their common sense at the

school house door. When they must forecast how poisonous accusations lobbed over the

internet are likely to play out within the school community, if they “can point to a well-

founded expectation of disruption,” (citation omitted) we ought to be supportive of their

reasonable efforts to maintain appropriate order (Layshock ex rel. Layshock v. Hermitage Sch.

Dist., (2011), at 222).

As can be seen in these words from Layshock, the courts have not only adopted, but have

also adjusted, the Tinker nexus test whereby school administrators may take action regarding

student speech, either applying it or not to determine if speech directly results in a substantial

disruption to learning. To this test, the Seventh Circuit added consideration for where the

student speech initiated; the Second Circuit added the idea of reasonable foreseeability to

consideration of whether the student speech would cause a substantial disruption; and the Ninth

Circuit, in response to the 2000 Columbine shootings, added that schools could take action

against student speech if “faced with an identifiable threat of school violence” (Calve, 2016, p.

217). In Layshock, the court uses “well-founded expectation of disruption” as a means of

validating the actions of school administration to provide order without placing its decision

under Tinker’s umbrella (Layshock ex rel. Layshock v. Hermitage Sch. Dist., (2011) at 222).

Considerations brought by Bell, echoed in other cases before and after it and by other

circuit courts, include what constitutes a true threat, harassment, or intimidation; what makes for

a substantial disruption or the foreseeability that one will occur; and how to assess the private or

public nature (or intent) of the speech. While these considerations were certainly considerations

prior to the overwhelming influence of social media on today’s culture, the vast and ever-

increasing pool of available resources, as well as how those social media platforms are employed,

creates an intricate network of complications that school administrators must navigate in

performing their duties. Unfortunately, such complications do not preclude schools’

responsibility to, in Jefferson’s words, “keep pace with the times.”

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Normally, a certain level of incongruity among the courts would be a compelling reason

for the Supreme Court to issue certiorari. Such was anticipated, but not realized with Bell in

2016. William Calve, in his article The Amplified Need for Supreme Court Guidance on Student

Speech Rights in the Digital Age, views Bell as a missed opportunity for the Supreme Court to

reaffirm Tinker’s application in a new age. Circuit court rulings in social media cases have been

largely in favor of districts, especially of late, and Calve feels that the majority opinion in Bell

(as a prime illustration) “’obliterates the historically significant distinction between the

household and the schoolyard’ and extends ‘schools’ censorial authority from the campus and

the teacher’s classroom to the home and the child’s bedroom’” (Calve, 2016, p. 220).

Is this a fearful reigning in of a student’s learning universe as a reaction to social media’s

continuing expansion of Tinker’s “schoolhouse gates”? Calve opines

Tinker was not written for a world of teenagers on social media, school violence and

cyberbulling in the news, or debates about the inherent meaning of rap lyrics. Taylor Bell’s

case presented an opportunity for the Court to reaffirm its commitment to the constitutional

rights of students while providing guidance on the extent of school disciplinary authority. By

denying certiorari, the Court has left the parameters of student speech rights in a state of

disarray where all that is certain is that more litigation is to come (Calve, 2016, p. 221).

Justice Breyer, in his concurrence on the 2007 decision in Morse v. Frederick (551 U.S.

393 (2007)), the most recent of the Tinker progeny where the Court ruled in favor of the school

and against a student’s unfurling pro-drug banner (“Bong Hits 4 Jesus”) at an extracurricular

school event, voiced his concern about the courts’ weighing in on school disputes.

Students will test the limits of acceptable behavior in myriad ways better known to

schoolteachers than to judges; school officials need a degree of flexible authority to respond

to disciplinary challenges; and the law has always considered the relationship between

teachers and students special. . . . [T]he more detailed the Court's supervision becomes, the

more likely its law will engender further disputes among teachers and students. Consequently,

larger numbers of those disputes will likely make their way from the schoolhouse to the

courthouse. Yet no one wishes to substitute courts for school boards, or to turn the judge's

chambers into the principal's office (Morse v. Frederick (2007), at 4).

Until now, the Court’s reluctance to rule on social media has been unclear. In

Packingham v. N.C. (582 U.S. ___(2017)), however, Justice Kennedy provides some insight into

the Court’s hesitation, advising that the Court “exercise extreme caution” before determining the

extent of First Amendment protections relative to Internet access (Packingham v. N.C., (2017), p.

6).

17

Packingham, the Court notes, is “one of the first [cases] this Court has taken to address

the relationship between the First Amendment and the modern Internet” (Packingham v. N.C.,

(2017), p. 6). In Packingham the Court likens social media to a “revolution in thought,” noting

that participants, as in the early stages of any revolution, are potentially unaware of the impact

and import of what is taking place at the start. Justice Kennedy writes, “The forces and

directions of the Internet are so new, so protean, and so far reaching that courts must be

conscious that what they say today might be obsolete tomorrow” (Packingham v. N.C., (2017), p.

6).

Plaintiff Packingham, a convicted sex offender, challenged the judgment of the North

Carolina Supreme Court in upholding a 2008 law denying registered sex offenders access to

“commercial social networking Web site[s]” (Packingham v. N.C., (2017), p. 1), including those

which would facilitate networking for employment, thus limiting their ability to communicate.

As abhorrent as it might be to use this particular case to reinforce the importance of Internet use

among students, it is important to reiterate that this is the first time the Supreme Court has taken

a position on the use of social media, so this ruling is broadly precedential. The Court’s decision

is based upon the belief that websites are “integral to the fabric of our modern society and culture”

(Packingham v. N.C., (2017), p. 10), and that there is a danger in completely barring access

without risking deprivation. Justice Kennedy’s closing statement quotes from Ashcroft v. Free

Speech Coal. (525 U.S. 234, 255 (2002)), saying “[T]he Government ‘may not suppress lawful

speech as the means to suppress unlawful speech’” (Packingham v. N.C., (2017), p. 10).

Kennedy quotes from Reno v. Am. Civil Liberties Union (521 U.S. 844, 870 (1997))

saying, “[W]ebsites can provide perhaps the most powerful mechanisms available to a private

citizen to make his or her voice heard. They allow a person with an Internet connection to

‘become a town crier with a voice that resonates farther than it could from any soapbox’”

(Packingham v. N.C., (2017), p. 8). Considered thus, it is easy to see how limitations imposed

on Internet use can be overbroad, resulting in a deprivation of rights for those who have done no

wrong.

With this in mind, and reflecting on the background presented earlier in this study, it is

reasonable to assume that we are, in fact, in the early stages of a revolution. In the context of

Justice Kennedy’s analysis and Thomas Jefferson’s guidance, there is a strong argument that the

18

use of social media as an instructional imperative is worth the risk. However, this conclusion is

not reached without certain caveats.

Because education stakeholders are unique individuals, and because it is impossible to

know with absolute certainty how any one of those individuals will respond in any given

situation, school personnel, particularly administrators, live under a cloud of potential litigation.

Every action administrators take is burdened with underlying risk. Acting in a timely manner

and with consistency and equity often helps to minimize those risks, but to do so, administrators

find it helpful, if not essential, to follow a concrete set of rules in assigning consequences and

solving problems.

The lessons of past practice and established guidelines weave a safety net that

accompanies every risk. However, use of social media increases the potential for risk simply

because of its exponential growth as a communication form over a very short period of time, the

wide net cast by its applications, and its hydra-like ability to manifest and insert itself into

people’s lives in unanticipated ways.

In no special order of importance, consider the following when incorporating social

media of any type and at any grade level into school curriculum and pedagogy:

1) Before approving the use of social media, even for the purpose of online research,

make sure such use is covered by a school district policy and, given the ever-

changing nature of the laws surrounding this issue, that such policies are reviewed

by district legal counsel prior to adoption.

2) Make sure all school personnel, students, and parents have access to and read

district policies pertaining to use of social media annually.

3) Create very specific guidelines for the use of social media, including, but not

limited to, communicating the district policy. It is impossible to anticipate

students’ every action, especially outside of class; however, providing and

following established procedures affords districts a certain degree of protection.

4) Guidelines should include allowable uses, prohibited uses, and potential

consequences, and should address appropriate forms of expression to help

mitigate the potential for bullying, etc.

5) Think outside the box in terms of social media use. For example, can

opportunities be found to collaborate online with students from a school in

19

another state? country? pen pals? The greater the structure for use that is

provided, and the better it is articulated, the less likely the chance for aberrant and

risky social media behaviors.

6) Avoid utilizing existing, commercial social media platforms. Students gain the

benefits afforded by social media thinking under conditions that limit risk such as

when they are given opportunities to help design and create district-specific social

media platforms.

7) Using social media creates an imperative that school curriculum be expanded or

changed to address its proper use. Instruction in harassment is essential.

Instruction in discerning between what has become known as “fake news” and

authentic, reliable news sources is also essential—as is helping students develop

the ability to identify web source bias.

8) Ensure that the school/district provides filters for social media accessibility—and

know the limits of those filters.

9) Train, train, train school personnel, students, and parents, annually at least, about

social media’s different forms and its proper and safe use.

While students do have First Amendment rights in their role as students, the Court in

Tinker established that there are limits to these rights to ensure that schools are able to function

without significant disruption to the educational process. The black armbands in Tinker opened

the door to symbolic speech. Social media, at least in terms of websites, has now been identified

by the Court as part of the fabric of society, as part of our modern culture. The Court has now

gone on record as recognizing the integrity and the value of this particular system of

communication, just as it did with symbolic speech in Tinker. That, in itself, is strong validation

for expanding the boundaries of acceptable communication.

Is Calve’s prediction of increased litigation a prescient warning against the use and

acceptance of social media as a legitimate form of communication in schools today based upon a

judicial void and failure to change with the times? Or, is the Court, by its reluctance to take a

stand, actually affirming Tinker’s (and the Tinker progenys’) universal application as the

protection of students’ rights to free expression? Are schools in the proverbial “catbird seat” and

should be more likely to take risks given court decisions in their favor regarding social media

challenges? Should the Supreme Court act to establish a new rule addressing freedom of speech

20

that takes into account how social media impacts school and students today? Or, in light of

increased concerns about school safety based upon incidents of bullying and violence in our

post-Columbine age, is Tinker doing exactly what it should be doing—which, again, begs the

question, is it time for social media’s “coming of age” in public schools?

School systems, which, historically, have been reticent to change, must take note.

However, courts also must recognize the need to establish a different kind of framework using

objective, neutral principles for analyzing social media cases related to education. As students’

use of social media continues to grow and evolve, it will become even more clear that Tinker is

now not enough. “Significant disruption” is too subjective a standard on which to base legal

decisions—a standard that will ultimately, if it has not already, chill speech.

This is no easy challenge to meet given the uniqueness of social media platforms and

their corresponding reach—and the slow pace of our judicial system. Recently retired Justice

Posner of the 7th Circuit, in his concurrence in Hively v. Ivy Tech Cmty. Coll. of Ind., No. 15-

1720 (7th Cir. Apr. 4, 2017), explains this noting how the perception of certain of life’s

conventions can, over time, outpace the courts’ interpretation of the law. Hively focused on a

very different subject, using Title IX as the lens through which to view discrimination based

upon sexual orientation; however, Posner’s words ring true replacing “sex discrimination” with

“free speech.”

I would prefer to see us acknowledge openly that today we, who are judges rather than

members of Congress, are imposing on a half-century-old statute a meaning of ‘sex

discrimination’ that the Congress that enacted it would not have accepted. This is something

courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid

placing the entire burden of updating old statutes on the legislative branch. We should not

leave the impression that we are merely the obedient servants of the 88th Congress (1963-

1965), carrying out their wishes. We are not. We are taking advantage of what the last half

century has taught (Hivly v. Ivy Tech Cmty. Coll. of Ind., (2017), p. 34).

The Congress that ratified the Bill of Rights in 1791 knew a much less expansive kind of speech

than we do. One can only imagine how the options and the pace of communication today would

overwhelm them.

Schools must take the risk not only to use social media as a tool, but, also, to weave it

into the learning infrastructure. When people learn to speak a second language, it is quite natural

for them to continue to think in their native tongue, at least at the start of the language

21

acquisition process. Social media has moved far beyond “second language” status for our

children and a large portion of our adult population. Schools, and courts, must catch up.

22

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