Abstract
“Hot or not” lists have existed since at least when I was in high school, but now they are posted all over the Internet. That changes everything from the 1980s (ancient times, according to my students, who take pity on us having had such primitive technologies as record players and landlines). My generation took great pains to make sure only a small number of us had access to such lists, as we knew we would be in a bucketload of trouble if discovered. We knew nothing of the Tinker ruling that protected us, only that you did not want to get busted by our principal, Dr. Grant, because he clearly had all the power, and we had none.
But now posting a “hot or not” list on a personal website is an entirely new ball game, as we attempt to understand new media through the lenses of old-media laws. Instead of attempting to hide the existence of questionable material, students use the Internet to make sure everyone sees it. Instead of busting students for behavior at school, administrators have a tougher time if the expression takes place off-campus. The Dr. Grants of the world are navigating a completely new legal area, and no one is quite sure what the rules are.
Jesulon S. R. Gibbs, JD, PhD, attempts to make sense of it all. Beginning with the First Amendment rationale for protecting as well as punishing student expression, she moves on to discuss the differences between the pre-Internet and current eras, then analyzes recent cases before offering a framework for school officials.
Noting that the Supreme Court has conflicting precedents, Gibbs details Tinker, Fraser, Hazelwood, and Morse v. Frederick (better known as “Bong Hits 4 Jesus”). While the majority in Tinker decreed that expression in the schools could be limited only if it posed a threat to the orderly functioning of the school, the three later cases clouded things by adding considerations of whether the expression conflicted with the educational mission of the school and whether the forum for the expression is related to the curriculum of the school (in which case the school board would have the right to regulate). “Bong Hits” went a step further by ruling that expression off-campus yet related to a school function could indeed be limited.
As no case involving student expression strictly online has been tried at the U.S. Supreme Court, Gibbs looks at the cases from federal district court and federal courts of appeals. She argues that the cases have relied on the Tinker ruling more than any other, but that standard gives us little meaningful guidance. The students who wore armbands to school in the iconic 1969 case were exonerated because they did not create a disturbance. If we take that standard and expand it to, say, that a student’s off-campus expression can be regulated if it is causing a disturbance on campus, we have the potential to regulate just about everything. First Amendment fans would come unglued at the thought, yet administrators protest that “hot or not” lists (or “teachers I hate” or “kids who are too uncool” lists) definitely create disorder on campus.
In response to this dilemma, Gibbs devotes the last two chapters to a “proposed framework” and “future directions and educational policy implications,” first attempting to explain the differences between “substantial disruption, “ “mere dislike,” “unsubstantiated fear,” and “true threat,” but obviously, these terms are open to interpretation. She concludes by advising administrators to write thoughtful and well-thought-out policies, and although that sounds like another obvious point, she acknowledges that in these days of legal confusion, that goal is not easily achieved.
The good news is that Gibbs, who earned her law degree and her doctorate at Indiana University, admits that there are no easy answers, that courts have contradicted each other, and that a previous situation may or may not help us predict the outcome of the next. Those admissions alone make her courageous for even taking on this topic.
She is thorough not only in the breadth of cases she describes, but also in the depth of each description. She avoids legalese when she can and attempts to make the book accessible to everyone who might have an interest. Several charts offer further analysis, and an appendix of incidents settled out of court offers episodes that are as interesting as some that did make it to trial. I plan to follow up on some of those entries to see if they merit discussion in my undergraduate media law course.
The bad news, aside from her conclusion that there is no simple conclusion, is organization. Chapters 5 to 8 are devoted to cases, divided into which court of appeals held the trial. I would have preferred theme-by-theme arrangement, regardless of the court, and Gibbs was clearly thinking in themes when she wrote the analysis chapters using terms such as “mere dislike” and “true threat.” Setting up the entire manuscript by theme would have made it easier to follow.
This book might be useful for a graduate law seminar as supplemental reading, and I might recommend it to an individual student who is interested in this topic. I would not recommend it for an undergraduate media law course. Between the unsettled areas of the law and the organization by court instead of topic, I think even the stronger students would have difficulty making sense of it all.
Gibbs is now the director of the Office of School Transformation for the South Carolina Department of Education. She was an assistant professor of educational leadership at South Carolina State University when the book was published.