social media: instructional imperative or legal liability?
TRANSCRIPT
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
15
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
References
About Fuller: World Game. (n.d.). Buckminster Fuller Institute. Retrieved from
https://www.bfi.org/about-fuller/big-ideas/world-game
Bell v. Itawanba Cnty. Sch. Bd. 859 F. Supp. 2d 834 (N.D. Miss. 2012). Retrieved from
http://www.ca5.uscourts.gov/opinions%5Cpub%5C12/12-60264-CV2.pdf
Brompton, R. (2014, March 31). Simple inventions that changed the way we live [Web log post]
TeamSpark. Retrieved from http://www.teamspark.co/blog/2014/03/31/simple-inventions-
that-changed-the-way-we-lived
Boutin, P. (2013). A technological revolution: 10 technologies that have dramatically changed
the way we live. NBCNEWS.com. Retrieved from
http://www.nbcnews.com/id/6186351/ns/technology_and_science/t/technological-
revolution/#.WZHYc7YrLR1
Calve, W. (2016). The amplified need for supreme court guidance on student speech rights in the
digital age. St. Mary’s L.J. 48, 377-402. Retrieved from Westlaw database
Dobo, N. (2017, June 21). Bridging the divide between ed tech research and the classroom. The
Hechinger Report. Retrieved from http://hechingerreport.org/bridging-the-divide-between-
ed-tech-research-and-the-classroom/
Gordon, Terrance. (2002). Marshall who? Marshall McLuhan. Retrieved from
https://www.marshallmcluhan.com/
Gutenberg’s Legacy. (n.d.). Harry Ransom Center: The University of Texas at Austin. Retrieved
from http://www.hrc.utexas.edu/educator/modules/gutenberg/books/legacy/
Hively v. Ivy Tech Cmty. Coll. of Ind., No. 15-1720 (7th Cir. Apr. 4, 2017). Retrieved from
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D04-
04/C:15-1720:J:Wood:aut:T:fnOp:N:1942256:S:0
Johnson, Shontavia. (2017). Donald Trump’s tweets are now presidential records. U.S. News and
World Report. Retrieved from https://www.usnews.com/news/national-news/articles/2017-
02-01/donald-trumps-tweets-are-now-presidential-records
J.S. ex rel. Snyder v. Blue Mountain Sch. Dist. 650 F. 3d 915 (3d Cir. 2011). Retrieved from
http://sblog.s3.amazonaws.com/wp-content/uploads/2011/10/11-502-3rd-Cir..pdf
Kuskis, A. (2013, April 1). “We shape our tools and thereafter our tools shape us.” [Web log
post] McLuhan Galaxy. Retrieved from
23
https://mcluhangalaxy.wordpress.com/2013/04/01/we-shape-our-tools-and-thereafter-our-
tools-shape-us/
Layshock ex rel. Layshock v. Hermitage Sch. Dist. 650 F.3d 205 (2011). Retrieved from
https://scholar.google.com/scholar_case?case=4776689052801290341&hl=en&as_sdt=6&a
s_vis=1&oi=scholarr
Lowery v. Euverard. 497 F.3d 584, 596 (6th Cir. 2007). Retrieved from
http://www.opn.ca6.uscourts.gov/opinions.pdf/07a0295p-06.pdf
McLuhan, M., & Fiore, Q. (1967, renewed in 1996). The Medium Is the Massage. Berkeley, CA:
Gingko Press, Inc.
McLuhan, M. (2015). understanding MEDIA. In W. Terrence Gordon (Ed.). Berkeley, CA:
Ginko Press, Inc.
Merriam-Webster. (n.d.). Definition of mass media. Retrieved from https://www.merriam-
webster.com/dictionary/mass%20media
Merriam-Webster. (n.d.). Definition of social media. Retrieved from https://www.merriam-
webster.com/dictionary/social%20media
Merriam-Webster. (n.d.). Definition of watershed. Retrieved from https://www.merriam-
webster.com/dictionary/watershed
Morse v. Frederick. 551 U.S. 393 (2007). Retrieved from
https://www.supremecourt.gov/opinions/06pdf/06-278.pdf
National Archives. (2014, December 1). National Archives Welcomes Presidential and Federal
Records Act Amendments of 2014. Retrieved from https://www.archives.gov/press/press-
releases/2015/nr15-23.html
National Geographic Society. (2011, October 5). watershed. Retrieved from
https://www.nationalgeographic.org/encyclopedia/watershed/
Packingham v. N.C.. 582 U.S. ____ (2017). Retrieved from
https://www.supremecourt.gov/opinions/16pdf/15-1194_08l1.pdf
Prensky, M. (2001). Digital Natives, Digital Immigrants Part 1. On the Horizon, 9.5. 1-6.
https://doi.org/10.1108/10748120110424816
Prensky, M. (2009). H. Sapiens Digital: From Digital Immigrants and Digital Natives to Digital
Wisdom. Innovate: Journal of Online Education, 5:3, Article 1.
http://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1020&context=innovate
24
Presidential Records. 44 U.S.C. Chapter 22 §§2201-2205 (2014)
Quotations on the Jefferson Memorial. (n.d.). Monticello. Retrieved from Monticello.org
https://www.monticello.org/site/jefferson/quotations-jefferson-memorial
Schilling, D.R. (2013, April). Knowledge Doubling Every 12 Months, Soon to be Every 12
Hours. industry tap into news. Retrieved from http://www.industrytap.com/knowledge-
doubling-every-12-months-soon-to-be-every-12-hours/3950
Shakespeare, W. (n.d.). The Tragedy of Macbeth. The Complete Works of William Shakespeare.
Retrieved from http://shakespeare.mit.edu/macbeth/macbeth.5.5.html
The 10 Most Important Moments and Events in History. (2016). Owlcation. Retrieved from
https://owlcation.com/humanities/The-10-Most-Important-Moments-in-History-An-
Illustrated-Guide
Timeline of Computer History. (2017). Computer History Museum. Retrieved from
http://www.computerhistory.org/timeline/computers/
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 504 (1969). Retrieved from
https://scholar.google.com/scholar_case?case=15235797139493194004&hl=en&as_sdt=6&
as_vis=1&oi=scholarr
Top 10 Watershed Moments in History. (2010). Listverse. Retrieved from
http://listverse.com/2010/08/28/top-10-watershed-moments-in-
history/?utm_source=2leep.com&utm_medium=referral&utm_campaign=exchange2leep
Vick, Karl. (2017). The Digital Divide: A Quarter of the Nation Is Without Broadband. Time.
Retrieved from http://time.com/4718032/the-digital-divide/
Whipps, H. (2008, May). How Gutenberg Changed the World. Live Science. Retrieved from
https://www.livescience.com/2569-gutenberg-changed-world.html