Stopping the Obscenity Madness 50 Years After Roth v. United States article was accessed through LexisNexis Academic through Smathers Libraries at UF. They are examples of Harvard Bluebook style, the standard citation form in legal writing. FOOTNOTES: n1. 354 U.S. 476 (1957). n2. Id. at 485. n3. The First Amendment to the United States Constitution provides in relevant part that "Congress shall make no law ... abridging the freedom of speech, or of the press." U.S. Const. amend. I. The Free S peech and Free Press Clauses have been incorporated through the Fourteenth Amendment Due Process Clause to apply to state and local government entities and officials. See Gitlow v. New York, 268 U.S. 652, 666 (1925).
1 CHILD REARING AND THE FIRST AMENDMENT: EXAMINING THE GOVERNMENTAL AND PARENTAL INTERESTS IN PROTECTING MINORS FROM HARMFUL SPEECH BY EUGENE MINCHIN A THESIS PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUI R EMENTS FOR THE DEGREE OF MASTER OF ARTS IN MASS COMMUNICATION UNIVERSITY OF FLORIDA 2014
2 2014 Eugene Minchin
3 T his thesis is dedicated t o Suzanne Minchin and John Pemberton, my two favorite pharmacists, in that order.
4 ACKNOWLEDGEMENTS I wish to thank my parents, grandparents, and siblings, all of whom have been a pleasure to live with for these last many months and who have all at least professed a mild interest in the subjects of parental rights and the freedom to receive speech. I wo uld also like to thank Clay Calvert, the best professor I have ever known.
5 TABLE OF CONTENTS page ACKNOWLEDGEMENTS ................................ ................................ ................................ ............. 4 ABSTRACT ................................ ................................ ................................ ................................ ..... 7 CHAPTER 1 INTRODUCTION ................................ ................................ ................................ .................... 8 2 SUBSTANTIVE DUE PROCESS AND THE RIGHTS OF PARENTS ............................... 16 Substantive Due Process ................................ ................................ ................................ ......... 16 Parental Rights under the U.S. Constitution ................................ ................................ ........... 22 3 LITERATURE REVIEW ................................ ................................ ................................ ....... 30 Books ................................ ................................ ................................ ................................ ...... 30 Adolescents, Media, and the Law ................................ ................................ .................... 30 Saving Our Children from the First Amendment ................................ ............................ 33 Not in Front of the Children ................................ ................................ ............................ 35 Journal Articles ................................ ................................ ................................ ....................... 37 Parents, Children, and the Courts: The Confused Constitutional Status and Meaning of Parental Rights ................................ ................................ ................................ ......... 37 Protecting Children from Speech ................................ ................................ .................... 40 Anyth Controversial Speech ................................ ................................ ................................ ... 42 Playing Games with the First Amendment ................................ ................................ ...... 45 In the Name of Children: Government Regulation of Indecency on the Radio, Television and the Internet ................................ ................. 47 Overview ................................ ................................ ................................ ................................ 49 4 MOORING THEORY TO PRACTICE ................................ ................................ ................. 53 Free Speech Theories ................................ ................................ ................................ .............. 53 Truth Attainment through the Marketplace of Ideas ................................ ....................... 53 Democratic Self Government and the Voting of Wise Decisions ................................ ... 56 Human Dignity: Self Fulfillment and Individual Autonomy through Freedom of Speech ................................ ................................ ................................ .......................... 57 Why Now? Strict Scrutiny and Censorship of Minors in a Contemporary Context .............. 59 Doctrinal Application of Theory ................................ ................................ ............................ 67 Effect on Children ................................ ................................ ................................ ........... 68 Effect on Parents a nd Other Adults ................................ ................................ ................. 75 Effect on the Relationship between Children and their Parents ................................ ...... 78 5 CONCLUSION ................................ ................................ ................................ ....................... 84
6 Harmful Speech? ................................ ................................ ................................ ................. 84 How Much P roof of Actual Harm to Minors from Speech is Required before the State Should be Allowed to Intervene and Offer Protection? ................................ ...................... 86 What Legal Standards Should be Employed in Determining when Speech is Harmful to Minors? ................................ ................................ ................................ ............................... 88 REFERENCES ................................ ................................ ................................ .............................. 91 BIOGRAPHICAL SKETCH ................................ ................................ ................................ ......... 97
7 Abstract of T hesis Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Master of Arts in Mass Communication CHILD REARING AND THE FIRST AMENDMENT: EXAMINING THE GOVERNMENTAL AND PARENTAL INTERESTS IN PROTECTING MINORS FROM HARMFUL SPEECH By Eugene Minchin May 2014 Chair: Clay Calvert Major: Mass Communication This work examines the First Amendment right of minors to receive speech within the context of parental rights and the o stensible governmental interest of protecting children from harmful materials. The thesis begins with an historical overview of the substantive due process field of child protection censorship and draws on the theoretical free speech justifications of the marketplace of ideas, democratic self governance and human dignity to suggest that many governmental attempts to protect minors from speech are based upon cultural assumptions rather than scientific evidence. Examining the judicial standard of strict scrutiny in the post Brown v. Entertainment Merchants Association landscape, this thesis finally contends that the harms foisted upon the free speech rights of children and the parental rights of adults generally outweigh any benefits produced by state attempts to keep minors ignorant about potentially difficult or offensive ideas.
8 CHAPTER 1 INTRODUCTION In August 2013, the U.S. Court of Appeals for the Nint h Circuit upheld, against a First Amendment 1 challenge, a California statute 2 that prohibits licensed health providers from engaging in sexual orientation change efforts (hereinafter SOCE) with minors. 3 T he ruling, which came fewer than two weeks after New Jersey Gov. Chris Christie signed a similar bill 4 into law, 5 to discipline by the licensing entity 6 if they attempt to use any means, including conversation, to dissuade minors from homosexual attraction or tendenc ies regardless of the wishes of either the parents or the minors themselves. The sponsor of the California law, the quackery of gay conversion therapy will not be able to rear its head in C alifornia (for 7 1 C ONST amend. I. The Free Speech and Free Press Clauses were incorporated n early ninety years ago through the Fourteenth Amendment Due Process Clause as fundamental liberties to apply to state and local government entities and officials. See Gitlow v. New York, 268 U.S. 652, 666 (1925). 2 C AL B US & P ROF C ODE § 865.1 (2013). 3 Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013). The 9th Circuit subsequently affirmed and slightly amended its ruling, a decision that that was, on the same day appealed by the plaintiffs. Pickup v. Brown, 2014 U.S. App. LEXIS 1878 (9th Cir. January 29 2014). The court denied an en blanc rehearing, so the plaintiffs petitioned the U.S. Supreme Court for grant of certiorari. Press Release, Liberty Counsel, Ninth Circuit Stays Ruling on California Change Therapy Ban (Feb. 4, 2014) press release, (found online at http://www.lc.org/index.cfm?PID=14100&PRID=1403 ) 4 A3371, Reg. Sess. (N.J. 2012 5 See Kate Zernike, Christie Ban N.Y. T IMES Aug. 20, 2013, at A14 (reporting outlawing therapy that aims to convert gay children to heterosexuals, making New Jersey the second state to ban the controv believes that parents should be left alone to decide how to raise their children, but, as a spokesman later clarified, he does not believe in so called conversion therapy whi 6 C AL B US & P ROF C ODE § 865.2 (2013). 7 Sam Stanton & Denny Walsh, S ACRAMENTO B EE Aug. 30, 2013, at A3.
9 In an unrelated ruling two months earlier, the U.S. Supreme Court refused to touch the Colorado appellate court decision in 8 The high 9 to be viewed by children under 12 years of age atten ding worship services and/or worship related 10 The stated objective in both of these seemingly disparate cases was the protection of minors from speech. In Scott, exposure to certain 11 because of the potential for psychological distress. 12 Pickup v. Brown, physical and psychological well being of minors, including lesbian, gay, bisexual, and tr ansgender youth, and [to] protect its minors against exposure to the serious harms caused by 13 These decisions were met with hisses and boos from some proponents of free speech, who widely perceived them to be deleteri ous to an open, robust exchange of ideas. 14 Yet an 8 296 P.3d 273 (Colo. App. 2012), cert. denied 2013 U.S. LEXIS 4402 (June 10, 2013). In July of 2013, counsel for Kenneth Tyler Scott and Clifton Powell filed a petition with U.S. Supreme Court requesting a rehearing of the ess, No. 12 1077, 2013 U.S. S. Ct. Briefs LEXIS 2831 (U.S. July 3, 2013). 9 Scott 296 P.3d at 281. 10 Id. 11 Id. at 284. 12 Id. 13 Pickup, 2013 U.S. App. LEXIS 18068 at 13. 14 Eugene Volokh, Wilderness), V OLOKH C ONSPIRACY June 10, 2013, http://www.volokh.com/category/freespeech/scott v saint johns churc h in the wilderness/
10 inextricably conjoined but less noted concern with these decisions is the potentially deleterious effects to parental rights. As the San Francisco Chronicle conservative Christian legal organi zations, 15 Gov. Christie captured the crux of the parental rights/free signing: At the outset of this debate, I expressed my concerns about government limiting parental choice on the care and treatment of their own children. I still have those concerns. Government should tread c arefully into this area and I do so here reluctantly. . However, on issues of medical treatment for children we must look to experts in the field to determine the relative risks and rewards. 16 The opinions in these two cases, just months apart, shed li ght on what may be a trend toward increased governmental interest in protecting minors from allegedly harmful speech. Governments within the United States often claim a broad, compelling interest in protecting children. 17 But such protection is fraught wi th potential pitfalls, related to both the First Amendment and parental rights. Bob Unruh, Court Gags Licensed California Therapists Upholds Ban on Help for Minors Who Want to Overcome Same Sex Attraction W ORLD N ET D AILY Aug. 29, 2013, http://www.wnd.com/2013/08/court censors licensed california therapists/ 15 Bob Egelko, Antigay Therapy Ban OKd S.F. C HRON ., Aug. 30, 2013, at D1. 16 Ruthann Robson, L AW P R OFESSOR B LOGS N ETWORK Aug. 26, 2013, at http://lawprofessors.typepad.com/conlaw/2013/08/new jerseys prohibition of sex ual orientation conversion challenged.html 17 Alan Garfield, Protecting Children From Speech, 57 F LA L. R EV 565 (2005). In this lengthy, comprehensive article regarding the First Amendment rights of minors, Garfield briefly discusses the evolution of t he concept of children may have simmered for centuries, but only in recent years, with the advent of pervasive media technologies, has it rise Id. at 568. He further discusses the different rationales used by governments from the federal to local levels psychological harm as one of the primary reasons.
11 Some governmental protection from allegedly harmful expression is apparently needed, but at what cost? Referring to the difficulty lawmakers and judges have in maintaining a reasonable balance when it comes to governmental protection of children, U.S. District Court 18 In light, then, of the two cases mentioned above, this thesis considers the following questions: harmful speech? How much proof of actual harm to minors from speech is required before the state should be allowed to intervene and offer p rotection? What legal standards should be employed in determining when speech is harmful to minors? Much of the existing jurisprudence and law review literature on the topic focuses on the en by offering protection from such expression. Such a paradigm commands a prima facie logic that has enabled it to become entrenched in speech related jurisprudence for decades. 19 Yet a reasonable consideration into the underside of that logic may sugges t that, in some cases, it may be misguided or even logically backward. Why? Because a government that wields the ability to help parents by intervening to 18 AC LU v. Reno, 929 F. Supp. 824, 882 (E.D. Pa. 1996) (Dallzell, J., concurring). In Reno Stewart Dalzell of the District Court for the Eastern District of Pennsylvania was a member of a three judge panel to review the Communications Decency Act, which was a legislative attempt to protect minors from accessing indecent material online by criminalizing the transmission of obscene material to anyone under the age of eighteen. Following the aled to the U.S. Supreme Court, where all however, is as dangerous as it is compelling. Laws regulating speech for the protection of childr en have no limiting principle, and a well intentioned law restricting protected speech on the basis of its content is, nevertheless, state 19 Garfield, supra sue in the 1950s and
12 protect their children also possesses the power through the same mechanism to produce the exact opp osite result. Free speech and parental rights are linked tightly together, and even well intentioned governmental attempts to place content based restrictions on distasteful and allegedly harmful speech may, in fact, cause harm to minors, their parents an d society as a whole by weakening the relationship between the two. This thesis responds to the arguments of others who assert either explicitly or implicitly that the state has broad power to intervene in the parental relationship when distasteful speech children from speech may not be as compelling as some commentators imply or insist. This thesis does not contend that the state possesses no interest whatsoever in the protecti on of children. What it attempts to do, however, is shed light on the points at which governmental and parental interests conflict, and advocate the position that when such conflicts arise, parental authority and free speech should be treated as compellin g interests in and of themselves. That is, a baseline of governmental protection should exist, but it should be minimal, serving only the narrowest of interests. quoted statement, however well intended, may be an unfortunate sign of the times, and that if there is to be censorship regarding what minors are allowed to see, parental censorship is generally superior to governmental. To address these topics, the thesis breaks down into four Parts. Part I concentrates on the historical development in American courts and legislative bodies of parental rights in child rearing. For nearly ninety years, the U.S. Supreme Court has recognized a constitutional right of parents to raise their children in the way they deem prudent, with most of this doctrine arising
13 from a series of cases that approach parental rights in an education context. 20 Although most is thesis does not examine this already heavily researched perspective, nor does it discuss the First Amendment rights of students within the schoolhouse gate. Although the thesis begins by tracing the history of the doctrine from its roots in state run e ducation, 21 it does not address parental rights in that context except as a necessary jumping off point to deal with the amorphous, murky matter of prior restraint on expression and content based regulation. Part II then provides a literature review, cond ensing the arguments, findings and contentions of scholars who have analyzed issues of free speech, parental rights and the protection of children. The shootings at Columbine High School in Colorado in April 1999 spurred both popular and academic interest in the protection of children from speech 22 (in free speech rights. In the post Columbine era, several books on the matter were published, the most notable of Not in Front of the Children 23 Adolescents, Media, and the Law 24 Saving Our Children From the First Amendment 25 Although some scholarship e xists on this topic, a relatively small amount of it attempts to bridge as this thesis does the concepts of freedom of speech and parental rights in 20 See Meyer v. Nebraska, 262 U.S. 390 (1923). 21 Beyond education, most other parental rights jurisprudence deals with adoption and custody issues, both of which are also beyond the scope of this thesis. 22 Garfield, supra not e 17, at 570 71. 23 M ARJORIE H EINS N OT IN F RONT OF THE C HILDREN : I NDECENCY C ENSORSHIP AND THE I NNOCENCE OF Y OUTH (2002). 24 R OGER L EVESQUE A DOLESCENTS M EDIA AND THE L AW : W HAT D EVELOPMENTAL S CIENCE R EVEALS AND F REE S PEECH R EQUIRES (2007). 25 K EVIN S AUN DERS S AVING O UR C HILDREN F ROM THE F RIST A MENDMENT (2003).
14 the context of content based restrictions. This makes this thesis, especially in light of the recent cases mentioned above, ripe. Part III then takes the cases, laws and ideas of the previous Parts and attempts to tether them to a congruent philosophical base, drawing on free speech theories to demonstrate the three distinct types of injurious effects brough t about by content based censorship in the name of protecting minors: harm to the children; harm to parents and other adults; and harm to the relationship between children and their parents. Three free speech theories are particularly applicable in t ying these three harms to philosophical bases: the marketplace of ideas theory, 26 the self fulfillment theory 27 and the democratic self governance theory. 28 All three are employed liberally. Part III also addresses exceptions and legitimate compelling inter ests of the state in protecting minors, while attempting to support the adoption of a narrowly tailored set of ideals that affords the broadest First Amendment and parental rights protections. Part IV briefly concludes by attempting to reconcile the prev iously discussed philosophies, history, jurisprudence, laws and empirical data into a tenable, easily understood framework one hopefully accessible to lawmakers and academics alike that unambiguously 26 The theory was first imported into First Amendment jurisprudence by Supreme Court Justice Oliver Wendell he thought to get itself dissenting). 27 Unlike the marketplace theory, which views free expression as a means to an end (the attainment of truth ), the self fulfillment theory sees self R ODNEY S MOLL A F REE S PEECH IN AN O PEN S OCIETY 9 (1992). 28 The theory is generally associated with scholar Alexander Meiklejohn who said that the primary point of the First Amendment is that it creates an atmosphere conducive to people governing themselves in an orderly, democratic program of self A LEXANDER M EIKLEJOHN F REE S PEECH AND I TS R ELATION TO S ELF G OVERNMENT 26 (1948).
15 details the rights most reasonably and necessarily affor ded to minors, their parents and society as a whole.
16 CHAPTER 2 SUBSTANTIVE DUE PROCESS AND THE RIGHTS OF PARENTS This Part has two sections. Because much of contemporary parental rights jurisprudence is rooted in the Due Process Clause of the Fourteenth Amendment, it is first necessary to briefly explain the substantive due process doctrine (hereinafter SDP) and how the U.S. Supreme Court historically has interpreted the Due Process Clause. With this background, the second section then focuses on how courts and legislative bodies understand parental rights in child rearing, taking special note of cases in the early twentieth century that significantly altered parental rights jurisprudence. Furthermor e, the second section draws from contemporary scholarship to discuss the judicial and historical strengths and weaknesses of parental rights placed in a Fourteenth Amendment context. Substantive Due Process The Fourteenth Amendment to the U.S. Constitutio n contains five sections, the majority of which are jurisprudentially univocal and rarely litigated. The first section, however, is a person of life, libert 1 Known as the Due Process Clause, 2 the specific intention of this section is to set limits on state governments, ensuring they follow proper legal channels before depriving citizens of life, liberty or propert y. 3 The Fourteenth Amendment was a product of post Civil War Reconstruction and was, even at its ratification, a point of tremendous controversy though not for the reasons it would later become 1 U.S. C ONST amend. XIV, § 1. 2 A Due Process clause also is found in the Fifth Amendment, although unlike the Fourth Amendment, which refers to individual states, the Fifth Amendment applies to the federal government. Nestled between clauses referring to eminent domain and testifying U.S. C ONST amend. V. 3 E RWIN C HEMERINSKY C ONSTITUTIONAL L AW P RINCIPLES AND P OLICES 545 (3rd ed. 2006).
17 contentious. 4 Originally intended to ensure that recently fre ed slaves would not be denied the basic civil liberties of U.S. citizenship, the amendment was hotly contested by Southern states, which were unwillingly forced to ratify it for re unionization. 5 The original controversy, however, has long since subsided, leaving in its stead an ideological battle about what the Few phrases in American jurisprudence have created more of a stir or inspired greater controversy than the seventeen words that compr 6 In particular, t hose seventeen words have been interpreted to support two different types of governmental limits: procedural due process and substantive due process. The heart of the contention li es in the use or even the legitimacy of the latter. Procedural due process refers to the government following proper legal procedures before inhibiting or infringing upon the life, liberty or property of an individual. 7 It addresses the justness and leg 8 It is more concerned with state policies that may rea ch beyond the bounds of governmental authority, sometimes addressing issues not explicitly mentioned in the 4 See Randy E. Barnett, W hence Comes Section One: The Abolitionist Origins of the Fourteenth Amendment, 3 J. OF L EGAL A NALYSIS 165, 166 (2011) (describing how some of the original language of the Fourteenth Amendment 5 See Xi Wang, Bondage, Freedom & the Constitution: The New Slavery Scholarship and its Impact on Law and Legal Historiography: Emancipation and the New Conception of Freedom: Black Suffrage and the Redefinition of American Freedom, 1860 187 0, 17 C ARDOZO L. R EV 2153, 2206 (1996) (stating that none of the Southern states 6 Jason A. Crook Process is a Constituti onal Misinterpretation, 10 N EV L.J. 1, 1 (2010). 7 C HEMERINSKY supra note II, 3 at 545. 8 Id. at 546.
18 U.S. Constitution. 9 Regardless of majority vote 10 or the fairness of the means through which a law is created, courts applying SDP may strike down s 11 inception more than a century ago. 12 Constitutional scholar Erwin Chemerinsky notes at least three major criticisms of SDP. The first is that the Due Process Clause is the incorrect provision to protect the substantive rights of life, liberty, property and pursuit of happiness, and that some other provision, such as th e Privileges and Immunities Clause, 13 is more applicable. 14 15 SDP has been used to strike down state laws in several landmark decisions regarding matters not 9 Id. at 547. 10 T IMOTHY S ANDEFUR T HE R IGHT TO E ARN A L IVING 91 (2010). 11 C HEMERINSKY supra note II, 3 at 546. 12 application is less agreed upon. Some scholars trace the concept that would later become SDP as having arisen from business related ante bel lum cases such as (59 U.S. 272 (1856)), while others suggest it originated in Scott v. Sanford (60 U.S. 393 (1857)). Either way, by the late nineteenth century, cases such as Mugler v. Kansas ( 123 U.S. 623 (18 87) ) had helped solidify the general concept in Supreme Court jurisprudence. See Anthony B. Sanders, Review of Economic Substantive Due Process Under State Constitutional Law Since 1940 and th e Reason for its Recent Decline, 55, A M U. L. R EV Dred Scott was perhaps 13 U.S. C ONST No St ate shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States 14 C HEMERINSKY supra note II, 3 at 547. 15 Id.
19 16 in Loch ner v. New York and the right to privacy in Roe v. Wade. 17 In examining these non constitutionally granted rights, 18 is ideationally representative of a wide swath of judges, scholars and p controversial counterpart, substantive 19 attacks on how the Supreme Court has used the doctrine over the course of Americ 20 21 Current Supreme Court Justices Antonin Scalia and Clare nce Thomas would likely agree 22 with this statement, as would have Oliver Wendell Holmes, Jr., who, nearing the end of his career, ore than anxiety that I feel at the ever increasing scope given to the Fourteenth 16 Lochner v. New York, 198 U.S. 45, 54 (1905). In Lochner, the Supreme Court used the SDP rationale to strike down a New York law that capped the number of hours that bakers could work each day and week. This case is C HEMERINSKY supra note 31, at 547. 17 Roe v. Wade, 410 U.S. 113 (1973). In this decision, the high court recognized the right to privacy as justification for granting women access to abortion. 18 Ellis v. Hamilton, 669 F.2d 510, 512 (7th Cir. 1982). 19 J OH N H. E LY D EMOCRACY AND D ISTRUST : A T HEORY OF J UDICIAL R EVIEW 18 (1980). 20 C HEMERINSKY supra note II, 3 at 547. 21 Crook, supra note II, 6 at 2. 22 Katherine Bartlett, Tradition as Past and Present in Substantive Due Process Analysis, 62 D UKE L.J. 535, 5 40 (2012).
20 Amendment in cutting down what I 23 artificial signification 24 of the Fourteenth Amendment that unduly subsumes legislative responsibility by granting the Supreme cart e blanche 25 For all its detractors, however, the fact that SDP has become standard constitutional doctrine is testament to its many supporters. As Chemerinsky attests, SDP is a convenient way t 26 thereby safeguarding basic freedoms. He also entify and safeguard 27 thus giving explicit legal recognition to normative cultural elements. Yet even for those who embrace SDP doctrine, the branding of any right that is not found Writing for the majority in Washington v. Glucksberg 28 Chief Justice William Rehnquist outlined the traditional method used to determine whether a nonenumerated right can be considered fundamental. Citing Snyder v. Massachusetts 29 and Palko v. Connecticu t 30 he opined that we have regularly observed that the Due Process Clause specially protects those e of our 23 Baldwin v. Missouri, 281 U.S. 586, 595 (1930). 24 Id. 25 Id. 26 C HEMERINSKY supra note II, 3 at 548. 27 Id. 28 521 U.S. 702 (1997). 29 291 U.S. 97 (1934). 30 302 U.S. 319 (1937).
21 31 The significance between fundamental and non fundamental rights is more than s emantic. Professor Tanya Washington succinctly explains: Rights derived from liberty interests that fall within the scope of due process protection are characterized as either fundamental or non fundamental and are granted different degrees of constitutio nal protection according to their status. State infringement of a fundamental right is subject to strict scrutiny, the most exacting constitutional evaluation. Strict scrutiny challenges the State with proving that its action is necessary to achieve a co mpelling interest. State impairment of a non fundamental right is subject to the most relaxed constitutional scrutiny, rational basis, which presumes that the state action is rationally related to a legitimate governmental interest 32 If a right is enumerat ed in the Constitution, such as the First Amendment guarantee of free speech, it is invariably fundamental and subject to strict scrutiny. If, however, a right is not enumerated, it may be either. 33 The difficulty lies in ascertaining which rights are licit in 34 The unenumerated right to privacy is such an example. Referring to the case that first recognized the SDP right to privacy, Griswold v. Connecticut, 35 professors Allan Ides and Christopher May write that the new ly recognized right of marital privacy, though nowhere mentioned in the 31 Glucksberg 521 U.S. at 720 721. 32 Tanya Washington, What About the Children?: Child Centered Challenges to Same Sex Marriage Bans, W HITTIER J. C HILD & F AM A DVOC 12, 16 17 (2012). 33 See A LLAN I DES & C HRISTOPHER M AY C ONSTITUTIONAL L AW : I NDIVIDUAL R IGHTS 85 (6th ed. 2013) (suggesting may avoid the strict scrutiny model entirely by finding that a challenged law or practice does not pass muster even under a rational basis standard of review, thereby making it unnecessary to decide whether the liberty interest in question is a fundamenta to have taken this route in Lawrence v. Texas, (539 U.S. 558 (2003)), where it struck down a Texas statute that made it a crime for two adults of the same sex to engage in intimate sexual conduc 34 Palko, 302 U.S. at 325. 35 this landmark case recognized the right of marital privacy in striking down a Nutmeg State law that forbade the use of contraceptives. Id.
22 36 The Court applied an extremely strict standard of review and invalidated the statute without any consideration of the 37 Ides and May further explain the differing rationales the justices used by asserting that Griswold majority offered a variety of bases for finding a fundamental right of marital privacy, they all agreed that the Court may gi ve protection to liberty 38 Because parental rights are unenumerated, judges for decades have found difficulty tethering them to a stable categorical base, even within SDP doctrine. Ye t r egardless of the ongoing ideological battle over due process, SDP doctrine is nonetheless an influential aspect of constitutional law and, as further explained in the next section, has been a primary historical locus of parental rights. Parental Righ ts u nder the U.S. Constitution children first emerged in a pair of education related cases in the 1920s. The first, Meyer v. Nebraska, 39 hinged upon the constitutio nality of a Cornhusker State statute that forbade the teaching of any language other than English in public schools. Writing the opinion for the majority, Justice James McReynolds wrote that Nebraska, in its endeavor to promote pted materially to interfere with . the power of parents to control 40 by outlawing the teaching of foreign languages to any child who 36 Id. at 485. 37 A LLAN I DES & C HRISTOPHER M AY C ONSTITUTIONAL L AW : I NDIVIDUAL R IGHTS 78 (6th ed. 2013). 38 Id. at 81. 39 262 U.S. 390 (1923). 40 Id. at 401.
23 was not yet in high school. 41 parent 42 and established the SDP 43 Two years later in Pierce v. Society of Sisters 44 the Supreme Court used Meyer to strike down an Oregon statute that required parents to send all children between eight and sixteen years of age to a public school. Writing once again for the majority, Justice McReynolds held that Meyer v. Nebraska . we think it entirely plain that the Act . unreasonably interferes with the liberty of parents and guardians to direct the upbringing and Justice McReynolds wrote have the right, coupled with the high duty, to recognize and prepare him for his additional 45 In summing up Meyer and Pierce McReynolds held that the contested statutes in both instances illicitly curtailed the fundamental right of parents to raise their children, opining rights guaranteed by the Constitution may not be abridged by legislation which has no reas 46 41 Id. at 397. Exceptions to the rule were Classic Greek and Latin and He brew. Id. at 400. 42 Id. at 400 43 Id. 44 268 U.S. 510 (1925). 45 Id. at 535. 46 Id.
24 This principle was expounded upon further in Wisconsin v. Yoder, 47 a 1972 case wherein the Court ruled that Amish parents had the right to control the upbringing of their children in ex empting them from state compulsory education laws. The Court wrote that free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children. 48 In the several decades following its initial emergence in the 1920s, the sca les of this balancing process tipped to and fro between the ostensibly at odds parental rights regarding being. 49 Counterbalancing the principles set forth in the two cases described above, the Court in Prince v. Massachusetts 50 for year old girl from soliciting ng [ sic parens patriae may restrict the 51 otect children from being exploited and harmed justified upholding laws prohibiting child labor, even if the work was at the direction of the parents and even if it was undertaken for religious 52 47 406 U.S. 205 (1972). 48 Id. at 247. 49 Susan Lawrence, Substantive Due Process and Parental Rights: From Meyer v. Nebraska to Troxel v. Granville, 8 J. L. F AM S TUD 71, 80 (2006). 50 321 U.S. 158 (1944). 51 Id. at 166. 52 C HEMERINSKY supra note II, 3 at 809.
25 For nearly three decades following the Yoder d ecision, however, the Supreme Court began slowly drifting away from applying SDP to parental rights cases. 53 Such an example was entrenched in natural law that elaboration i nto the whys and wherefores was a waste of time. 54 Ignoring both Meyer and Pierce and citing Stanley v. Illinois, 55 the Court in Lassiter v. Department of Social Services 56 untervailing interest, 57 In the closing years of the twentieth century, this jurisprudential shift created confusion Confused Constitutional Status 58 [T]he central question . has been why parental rights should be entitled to a special, constitutional status, [and] there has been enormous difficulty in answering the question. . The question that may really need to be addressed is whether continued talk about fundamental rights in this area is productive at all, or whether it would simply be better to recognize that parents have a constitutional right in their children, albeit an ordinary liberty interest. 59 53 Lawrence, supra note II, 49 at 80. 54 Id. at 89 90. 55 405 U.S. 645 (1972). 56 See 452 U.S. 18 (1981) (determining whether or not the Fourteenth Amendment required the appointment of counsel in a parental status termination proceeding to a woman whose child was taken from her after abuse and neglect; the Court found, following the arrest of the woman for murder, that the state trial court was not wrong under the Due Proc ess Clause to not appoint counsel for the mother). 57 Id. at 27. 58 Francis Barry McCarthy, Parents, Children, and the Courts: The Confused Constitutional Status and Meaning of Parental Rights, 22 G A L. R EV 975 (1988). 59 Id at 1030 1031.
26 Thi s confusion was further enhanced in 2000 in Troxel v. Granville. 60 After years of moving away from placing parental rights in a SDP context, the Supreme Court inexplicably returned to Meyer esque doctrine when it struck down a Washington state law that gra nted third parties the right to petition for child visitation rights, regardless of parental objections. The Court stated: life, liberty, or property, without due process of law The liberty interest at issue in this case the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska we held that the 61 The opinion continued at length along the same vein, applying both Meyer an d Pierce to explain the illegitimacy of the Evergreen State statute. In the wake of Troxel some scholars have suggested that the simplest solution to the confusion regarding the source of parental rights would be for the Supreme Court to admit it made a one time mistake and to continue on its 40 year course of drifting away from applying parental rights in an SDP context. Professor Susan Lawrence, for one, argues that the SDP moorings of parental rights are slowly loosening and shall soon find a more constitutionally tenable harbor. 62 Suggesting the emergence of a new parental rights paradigm, she argues that Meyer has largely been displaced by appeals to specific Bill of Rights guarantees, particularly F 63 60 530 U.S. 57 (2000). 61 Id. at 65. 62 Lawrence, supra note II, 49 at 84. 63 Id.
27 Troxel made the same insinuation. He to direct the upbringin 64 However, he rejected the application of SDP, suggesting that the Fourteenth Amendment does not authorize judicial enforcement of appl[ication of] strict scrutiny to infringements of fundamental rights 65 would be a more responsible method of adjudication. 66 the heart of the current debate and confusion about the appropriate locus of parental rights. The Troxel Court fractured badly, with six of the justices each writing th eir own opinions. 67 Justice Sandra Day Chief Justice William Rehnquist and Justices Ruth Bader Ginsburg and Stephen Breyer. Justices David Souter and Clarence Thomas filed opinions concurring with the majority, and Justices John Paul Stevens, Antonin Scalia and Anthony Kennedy each filed dissenting opinions. 68 Citing Glucksberg, on the question whether one standard must always take precedence over the other in order to prote 69 64 Troxel, 530 U.S. at 80. 65 Id. 66 See Christopher J. Schmidt, Revitalizing the Quiet Ninth Amendment: Determining Unenumerated Rights and Eliminating Substantive Due Process, 32 U. B ALT L. R EV 169, 187 (2003) (writing that Thomas was not alone in his application of the law, and that their children was an unalienable right proclaimed in the Declaration of Independence and an unenumerated right Griswold Co nstitution believed that there are additional fundamental rights, protected from governmental infringement, which Connecticut, 381 U.S. 479, 488 (19 65). 67 See generally Troxel, 530 U.S. 68 Id. 69 Id. at 96.
28 Justice Scalia, meanwhile, stated that the Ninth Amendment not the Fourteenth should be used to uphold the fundame ntal rights of parents, 70 and Justice Stevens wrote that the majority opinion was misguided because it did not take enough account of the well being of the children involved, instead focusing on the rights of the parents and role of the state. 71 Following t heir less than conclusive handling of the matter more than a decade ago, the Court has yet to face again the subject of parental rights as squarely as it did in Troxel. And it e 1980s is just as prevalent today as it was a quarter century ago: Unfortunately, there is only one way out of this problem and that is through clearer statements from the Supreme Court. While this may look like a deus ex machina resolution . the fa application of the principles of such a characterization that the present dilemma has been created. 72 The post Trox el confusion has led to calls for the U.S. legislature to give clarity to the matter by ratifying a constitutional amendment that would make an unenumerated right an enumerated ergo fundamental one. As of March 2014, according to Parentalrights.org, seve nty members of congress were listed as co 73 70 Schmidt, supra note II, 66 at 187. 71 See Troxel, has become standard practice in our substantive due process present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child's best interests. There is at a minimum a third individual, whose interests are implicated in every case to which the statute applies 72 McCarthy, supra note II, 58 at 1033. 73 See generally http://www.parentalrights.org/ (proposing, in full, that an amendment be ratified that states the following: SECTION 1: The liberty of par ents to direct the upbringing, education, and care of their children is a fundamental right. SECTION 2: The parental right to direct education includes the right to choose public, private, religious, or
29 Whether the propos ed amendment acquires any further traction remains to be seen. But aside from such enumeration, the present squabble about whether parental rights deserve strict scrutiny will likely continue until the high court deus emerges from the jurisprudential mach ina and provides further elaboration. In light, then, of the judicial fracturing and widely varied opinions surrounding parental rights and the role of parents in protecting their children, the next part of the thesis problematizes the rights of minors to receive speech by briefly summarizing relevant, scholarly books and articles that have been written on the subject. home schools, and the right to make reasonable choic the United States nor any State shall infringe these rights without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served. SECTI ON 4: This article shall not be construed to apply to a parental action or decision that would end life. SECTION 5: No treaty may be adopted nor shall any source of international law be employed to supersede, modify, interpret, or apply to the rights gu aranteed by this article (accessed March 7, 2013).
30 CHAPTER 3 LITERATURE REVIEW The decade following the April 1999 shooting at Columbine High School drew increased speech rights and the parental and governmental interests in protecting children from harm allegedly c aused by exposure to objectionable content. This part of the thesis provides a brief overview of some of the more prominent and important books and journal articles most written between 2000 and 2009 dealing with these issues. Many of the concepts cursor ily or summarily mentioned without extended explanation in this part are dealt with in greater detail in subsequent parts. Books Adolescents, Media, and the Law his 200 7 book, Adolescents, Media, and the Law, 1 speech . serves as the center point of rights necessary for healthy adolescent development in 2 Presuming that the unenumerated First Amendment right to receive speech is equal in importance with the right to speak, 3 Levesque asserts that both parents and rounded young people into mature citizens. Despite these interests, t 1 R OGER L EVESQUE A DOLESCENTS M EDIA AND THE L AW : W HAT D EVELOPMENTAL S CIENCE R EVEALS AND F REE S PEECH R EQUIRES (2007). 2 Id. at 284. 3 See id. at 232 (citing Bd. of Educ., Island Trees Union Free Sch. Dis t. No. 26 v. Pico, 457 U.S. 853 (1982), for the proposition
31 4 Levesque, who holds a J.D. from Columbia Universit y and a Ph.D. in cultural psychology from the University of Chicago, 5 contends that one of the primary potential harms to adolescents is ignorance fostered by lack of access to information. Drawing heavily on three traditional and philosophical justificat ions for free speech self expression, marketplace of ideas and democratic self governance he argues that the current political and legal structure stifles adolescent development and contributes to a generation of ill prepared cultural and civic illiterates 6 Because adolescence is marked by explosive personal development, Levesque asserts that the state should grant minors the opportunity to acquire every possible item available within the metaphorical marketplace of ideas. 7 spective of free speech principles, then, speech retains a special value to adolescents as a relative safe practice ground for choice, the essence of the market of 8 Writing from a Meiklejohnian perspective, 9 Levesqu must protect free speech to ensure self governance and foster civic participation, then adolescents own a strong claim to free speech. . The first developmental component essential 4 Id. at 285. 5 Indiana University Faculty Webpage, Roger Levesque, http://www.indiana.edu/~crimjust/faculty_levesque.php?nav=people (last visited Jan. 31, 2014). 6 L EVESQUE supra note III, 1 at 251. 7 See infra note IV, 6 and accompanying text (describing this theory of free expression, which often is associated with former Supreme Court Justice Oliver Wendell Holmes, Jr.). 8 L EVESQUE supra note III, 1, at 254. 9 See infr a note IV, 16 and accompanying text (describing the theory of free expression associated with philosopher educator Alexander Meiklejohn).
32 to responsible citizenship and civic participation directly centers on information and 10 He furthermore declares that free speech, whether for formation and st ructuring of political will, which directs the scope and purposes of democracy 11 From the self realization view of free speech, 12 Levesque argues that the think, listen, and speak for oneself is essential to a free and self determining personhood, the true 13 a liberty that is especially poignant to a demographic at its most formative stage of self identity. The accumulation of information that occurs in adolescence, he 14 Tying the three concepts together, he asserts: R esearch indicates that [the trio of] rationales may actually have greater relevance for adolescents than they do for adults: adolescents thirst f or ideas and readily engage the marketplace of information, seek to develop their sense of self through engaging with ideas, and shape their sense of civic responsibility that will guide their further participation in society and families. 15 Levesque conc ludes his book by emphasizing the importance of robust First Amendment protection for all citizens, regardless of age. He suggests the best course of action is to broaden 10 L EVESQUE supra note III, 1 at 254 255. 11 Id. at 239. 12 See infra note IV, 23 and accompanying text (describing the free speech theories of self realization and self fulfillment in greater detail). 13 Id 14 Id 15 Id at 283.
33 the application of existing adult oriented free speech jurisprudence to adolescents and give them many of the freedoms currently afforded to those above eighteen years of age. 16 Saving Our Children from the First Amendment In Saving Our Children From the First Amendment 17 Michigan State University professor Kevin Saunders advocates that society has a role to protect children and that it is failing to do so. The primary role of child rearing, he writes, rests with parents; but parents both want and need government assistance in order to pass along societally beneficial values to their off spring. 18 who holds a J.D. from the University of Michigan and a Ph.D. in philosophy from the University of Miami. 19 d be a supportive role rather than 20 to smoke. But from that premise, no one would argue that the state should not be allowed to prohibit sales of tobacco to minors. Parents need the support of the state in 21 To bolster his position, Saunders spends a substantial portion of h is tome discussing 16 Id at 285. 17 K EVIN S AUNDERS S AVING O UR C HILDREN F ROM THE F RIST A MENDMENT (2003). 18 Id at 84 19 Michigan State University Faculty Webpage, Kevin W. Saunders, http://www.law.msu.edu/faculty_staff/profile.php?prof=61 (last visited Jan. 31, 2014). 20 S AUNDERS supra note III, 17 at 7. 21 Id. at 8.
34 argues that application of the First Amendment should be similarly unequal. 22 After contending 23 afforded in the U.S. Constitution and repeatedly reiterating their significance for adults, he makes the case that complete as moral agents 24 Because minors are less than fully complete moral agents, he argues, they are less deserving of First Amendment freedoms, especially the freedom to receive speech. Since children have been given access to too much information at too young an age, Saun ders writes, American society is going to hell in a hand basket: minors are impregnating and 25 The solution, he suggests, is increased governmental regulation of the information minors may access. He proposes that the federal government should possess the ability to restrict 26 and be given leeway to ban the sale of vio lent video games and movies. He further advocates for extensive use of Internet filtering software to block minors from online smut and calls for tighter television broadcast restrictions. 27 22 See id at 119, (calling attention to cases such as New Jersey v. T.L.O ., 469 U.S. 325 (1985), in which school Amendment because the search was reasonable). 23 Id. at 19. 24 Id. at 86. 25 Id. at 1. 26 Id. at 257. 27 Id.
35 Contrary to the ideas espoused by Levesque, 28 Saunders argues that the marketplace of ideas and democratic self governance justifications for free speech, while valid for adults, are not applicable to minors because children are volatile, impressionable and not directly involved in the political process. 29 Such a limitin Ultimately, Sau nders asserts that when faced with deciding the materials minors should 30 between 31 Not in Front of the Children The views of New York University Professor and Reno v. ACLU 32 attorney Marjorie 33 stand in stark contrast to those of Kevin Saunders. 34 In Not in Front of the Children, 35 Heins takes a decidedly relativistic approach to right and wrong, devoting the majority of her attention to questioning the very assumption that children need protection at all. Her basic thesis is that 28 Supra Part III Section A. 1. 29 S AUNDERS supra note III, 17 at 4. 30 Id. at 43. 31 Id. at 10. 32 See supra note 18 and accompanying text (elaborating on the particulars of the series of cases, including Reno v. ACLU, 521 U.S. 844 (1997), wherein the Supreme Court struck down part of the Communications Decency Act). 33 The Free Expression Policy Project Webpage, Marjorie Heins, http://fepproject.org/fepp/heinsbio.html (last visited Jan. 31, 2014). 34 Supra Part I I I, Section A. 2. 35 M ARJORIE H EINS N OT IN F RONT OF THE C HILDREN : I NDECENCY C ENSORSHIP AND THE I NNOCENCE OF Y OUTH (2002).
36 children in the United States are unnecessarily coddled an d that claims of emotional distress and imitation of wrongdoing due to media exposure are vastly overblown. 36 Heins asserts that scant evidence exists linking exposure to ostensibly harmful material including sexual or excretal content, swearing or violenc e and behavior detrimental to society. that widely available access to pornography, in some cases, can be beneficial. 37 She attacks the arguments of child censorship proponents that children are substantially more impressionable than adults, 38 and employs multiple international examples to rebuff the to minors ideology wi standards are relative, culturally driven, and often employed rhetorically for political ends that 39 Heins speaks highly of Western European models of government funded sexual education and derides the U.S. for assuming a de facto abstinence until marriage policy. 40 She further contends that shielding minors from certain ideas only intensifies youthful cravings for the forbidden fruit. tower abstraction. Youngsters need access to information and ideas, not indoctrination and ignorance 36 See id. at 243 (suggesting that the work of media effects scientists such Albert Bandura is perhaps invalid due to 37 See id at 203 (describing how a proliferation of pornography in Japan coincided with a significant decline in rape and sexual assault). 38 Id. at 201. 39 Id at 200. 40 Id at 149.
37 of controversy, precisely because they are 41 Like Levesque, she suggests that, legally speaking, parents are better arbiters than the government in determining the speech to which children ought to be exposed. 42 Providing counterbalance to this concept, howeve whether it be governmental or parental, squelches the creativity, intellectual activity and overall well being of youth: Children are inexperienced, but they are not innocent. T hey need help from adults experience and help interpret the world, flaws and all. 43 Fun 44 employed by anxious adults who, while winning symbolic battles, are losing their children to frustration and stunted intellect ual growth. Journal Articles Parents, Children, and the Courts: The Confused Constitutional Status and Meaning of Parental Rights rights 45 raises many poignant questions abou t the constitutional status of such rights yet answers almost none of them except to point out that the queries merit consideration. McCarthy, who states that parental rights are an important aspect of civil society, sums up the lack of resolution, writin 41 Id at 258. 42 Id at 262. 43 Id at 257. 44 Id. 45 Francis Barry McCarthy, Parents, Children, and the Courts: The Confused Constitutional Status and Meaning of Parental Rights, 22 G A L. R EV 975 (1988).
38 46 McCarthy, who received his J.D. from Boston College and his LL.M. from Columbia University, 47 begins by asserting that the rationale for why parents should have a right to control systematically outlines several ethical and c ultural justifications for parental rights before subject, hard 48 Unfortunately for the sak e of clarity, however, the hard headed practical justifications he offers are, by his own admission, no more compelling than their more abstract counterparts. For he would not support recognition of ought to be independent at least to a large degree then a purely child centered justification is neither philosophically nor jurisprudentially suitable. substantive right in due process sense, but rather a claim that some benefit [such as access to certain speech] is available to one group yet denied to a 49 Because the best interests of 46 Id. at 1030. 47 University of Pittsburgh Faculty Webpage, Francis Barry McCarthy, http://www.law.pitt.edu/people/emeritus faculty/francis barry mccarthy (last visited Jan. 1, 2014). 48 McCarthy, supra note III, 35 at 1017. 49 Id. at 1012.
39 decisions limit the freedom of children, obviously there is considerable tension between the ideas 50 jurisprudential precedent, McCarthy suggests that the parental rights paradigm may need to be really need to be addressed is whether continued talk about fundamental rights in this area is productive at all, or whether it would simply be better to recognize that parents have a constitutional right in their childr 51 To resolve the muddle, McCarthy calls on the high court to do what he himself could not: 52 McCarthy certainly 53 Yet in the case o f the question at hand, he more or less comes to the conclusion that while parental rights are societally, philosophically and legally important, he cannot comprehensively explain why. 50 Id. at 10 11. 51 Id. at 1031. 52 Id. at 1033. 53 Id. at 1030.
40 Protecting Children from Speech In Protecting Children from Speech, 54 Widener University Professor Alan Garfield, who 55 takes a relatively moderate approach to age based censorship. As a starting point, Garfield argues that courts should apply a st protection 56 Under strict scrutiny, the state must na 57 He apparently believes that well thought out, narrowly tailored laws can satisfy the strict scrutiny standard. Unfortunately, he argues, recent legislative efforts to protect children from speech generally have been neither narrowly tailored nor well thought out. With a metaphorical flourish, he describes recent attempts to protect minors from online harm, in particular, as 58 One factor that can hel p guide lawmakers, he writes, is the common sense use of social science evidence regarding harm to minors. He suggests that compelling scientific evidence can, at times, be helpful in both lawmaking and jurisprudence, but that insistence or reliance upon it can be detrimental. To further his point, he quotes influential attorney Edmond Cahn, 59 who 54 Alan Garfield, Protecting Children From Speech, 57 F LA L. R EV 565 (2005). 55 Widener University Faculty Webpage, Alan E. Garfield, http://law.widener.edu/Academics/Faculty/ProfilesDe/GarfieldAlanE.aspx (last visited Jan. 1, 2014). 56 Garfield, supra note III, 54 at 577. 57 Brown v. Entertainment Merchants Association, 131 S Ct. 2729, 2738 (2011). 58 Garfield, supra n ote III, 54 at 584. 59 Edmond Cahn was a twentieth century legal philosopher and professor and was author of numerous publications, including The Sense of Injustice in 1949 and The Moral Decision in 1955. His 1955 article Jurisprudence (30 N.Y.U. L. R EV Seventy Fifth Anniversary Retrospective: Most Influential Articles ( 75 N.Y.U. L. R EV 1517, (2000) ) as being one of the most significant law journal pieces ever written.
41 60 Roughly six years before Brown v. Entertainment Merchants Association, Garfield wrote give courts pause before invalidating child protection censorship legislation for lack of empirical proof. 61 by itself, justify a First Amendment exception for child protection censorship. Social scientists, after all, might be able to show that minors would be upset by a wi de range of information, 62 Unlike Heins, however, Garfield stops short of suggesting that some children do not need protection from certain controversial topics, and 63 differently does not explain why 64 and perhaps a more equitable, age based recogni isions than adults ignores the multitude of adults who routinely make immature decisions, whether about 65 60 Garfiel d, supra note III, 54 at 590 (quoting Edmond Cahn Jurisprudence 30 N.Y.U. L. R EV 150, 167 (1955)). 61 Id. at 610. 62 Id. at 615. 63 Id. at 600. 64 Id. at 599 (emphasis in original). 65 Id. at 603.
42 In summary, Garfield opines that governments do possess an interest in protecting c suppression. Direct suppression should not be allowed whe n a less speech restrictive means In many cases, he argues, parents can and should handle any protection necessary. But if compelling social science evidence, for instance, suggests that military training video games substantially harm to children, then legislatures can and perhaps should carefully craft laws 66 Anything Goes: Examining th Speech Ph.D. (both in history) and J.D. from Yale, 67 could have made the title of her article 68 more accurate if down of the Child Online Protection Act, takes a step back from the question o f where to draw child protection lines and addresses the more fundamental issue of whether the government 66 Id. at 650. 67 George Washington University Faculty Webpage, Catherine J. Ross, http://www.law.gwu.edu/Faculty/profile.aspx?id=1713 (last visited Jan. 31, 2014). 68 Catherine Ross, Anything Goes: Exami 53 V AND L. R EV 427 (2000).
43 69 Because this issue largely has been glossed over by both courts and scholars, she ous consequences flow from this lack of attention to the nature of the interest 70 She argues that this manifests itself in erests are virtually 71 The second is the limitless . [resulting in] broad regulat 72 The third speech to shield the young, they inhibit the development of First Amendment jurisprudence and lead emerging d 73 sloppiness is that courts have glossed over the foundation[al] question of whether a compelling 74 Ro censorship. Citing then prevalent, mainstream news stories to illustrate her point, she argues the 69 Id. at 432 70 Id. at 433. 71 Id. 72 Id. at 433 434. 73 Id. at 434. 74 Id.
44 world itself is immune to sanitization making the whitewashing of spee ch impossible without sacrificing truth: The highest elected official admits to marital infidelity involving fellatio; high school students use guns to murder their teachers and/or classmates; a prominent musician, accused of child molestation, reportedly pays millions of dollars to avoid legal penalties; international news includes coverage of so in the Balkans and ethnic slaughter in Africa. None of these news stories could be barred consistent with the First Amendment 75 Because the ubiquity of potentially disconcerting news stories makes child protection untenable, she asserts, lawmakers would be better off letting parents determine what is best for y wanted 76 Because the state cannot please everyone, she contends, the best course of action is for it to provide only the scantest baseline of protection, one which would t their children to hear everything, others virtually nothing. These disparities make it nearly impossible for the government to establish 77 regulators, and judges must use a fine brush 78 But if a roller continues to be used, she warns, then the free speech rights of both adults and children, as well as the right to family autonomy, will be compromised. 75 Id. at 439 440. 76 Id. at 480. 77 Id. at 481. 78 Id. at 523.
45 Playing Games with the First Amendment Samford University Professor Gregory Laughlin, who earned his J.D. from the University Illinois, 79 games. 80 Although Laughlin a grees in part with the work of scholars Marjorie Heins and Catherine Ross as it pertains to the inconclusiveness of social science proving harm to minors, he nonetheless n between 81 Although he states that strict scrutiny should be applied in content based speech cases, he Ginsberg v. New York 82 that children are too sensitive and irrational to be faced with sexual speech access potentially disturbing speech can be easily and simply abridged without sacrificing constitutional integrity. Inconclusive social science evidence regarding harm to minors is of little concern for would degree o f scientific certainty of psychological or other measurable harm to justify such 79 Samford University Faculty Webpage, Gregory K. Laughlin, http://cumberland.samford.edu/faculty/gregory k laughlin (last visited Jan. 1, 2014). 80 Gregory Laughlin, Playing Games with the Fi to Graphically Violent Video Games be Restricted? 40 U. R ICH L. R EV 481 (2006). 81 Id. at 531 532. 82 See 390 U.S. 629 (1968) in which the Court upheld a New York law that forbade the selling to minors, even if the materials were suitable for adult consumption because they were merely indecent and not obscene.
46 83 As of 2006, when this article was published, he was correct in asserting this point. With the subsequent decision of Brown v. Entertainment Merchants Association, obsolete. Since Brown in 2011, an unverified, presumed correlation between speech and harm are no longer sufficient to permit the abridgment of video game access to minors. Applying the government helping the parents conc ept from Ginsberg Laughlin also 84 Not only are they permissible, he w rites; they are a moral imperative. Laughlin contends that than debase the value of others by participating in games in which they commit brutal acts of v iolence against very human looking characters as a form of entertainment, is sufficient to 85 To that end, he advocates an extension of Ginsberg and Federal Communications Commission v. Pacifica Foundation 86 to other areas of speech, in cluding violent video games. 87 83 Laughlin, supra note III, 80 at 533 (quoting Ginsberg at 641 ). 84 Id. at 533. 85 Id. at 538. 86 See id at 543 (extoling the virtues of FCC v. Pacifica Foundation, 438 U.S. 726 (1978), a case in which the Words You Can Never Say on 87 Laughlin, supra note III, 80 at 543.
47 to prevent a boy from purchasing a magazine containing pictures of topless women in provocative poses, as in Ginsberg but give that same boy a constitutional right to train to 88 Quoting extensively from Kevin Saunders, 89 Laughlin makes the case that the government has a compelling interest to help parents rear th their children will be exposed to such material. Government can, consistent with the First Amendment, and should provide th 90 This assistance is necessary, his writes, because social science evidence suggests that minors have less developed senses of responsibility than adults and are more vulnerable to negative influences. Society as a whole has an obligation therefore, to keep minors from accessing information that could potentially harm them or cause them to harm others. In the Name of Children: Government Regulation of Indecency on the Radio, Television and the Internet Georgia St Emory University and his J.D. from Vanderbilt, 91 begins his piece 92 simply, clearly and censor 88 Id. 89 Supra Part I I I, Section A. 2. 90 Id. at 545. 91 Georgia State University Faculty Webpage, Eric J. Segall, https://law.gsu.edu/directory/segall (last visited Jan. 1, 2014). 92 Eric Segall, In the Name of Children: Government Regulation of Indecency on the Radio, Television and the Internet 47 U. L OUISVILLE L. R EV 697 (2009).
48 non 93 Not one, Parents, teachers, and community leaders should shoulder th e responsibility for protecting children help (or censorship) to succeed in that task. Government censorship, more often than not, impedes the ability of those groups to take serious responsibi lity for the well being of our children. 94 To bolster his contention, Segall presents five reasons why almost any governmental attempt to shield minors from indecency is generally a harmful enterprise: Censoring unsavory speech only makes it more desirable and tempting to youth. Minor specific censorship laws usually make no age discrimination meaning a seven year old boy is treated the same as a seventeen year old boy. Minors should not be denied spee ch that may be relevant to them, regardless of its potential unsavoriness. No cultural or social science consensus exists about what speech actually harms minors. I unconsti tutionally vague, and are both under inclusive and over 95 Furthermore, Segall decries the fact that radio and television content receives less First Amendment protection than other forms of media. To rectify the situation, he proposes overrul ing Pacifica Foundation comparable to print. FCC v. Pacifica ss of deciding what our children should and should not see and leave that important responsibility to parents, 93 Id. at 698. 94 Id. 95 Id. at 716.
49 He bases this rationale on the premise that such g overnmental involvement violates 96 Although some parents may welcome the ostensible help as an intrusion. Eithe 97 because such partiality inevitably leads to house burning pig roasting 98 and the dilution of parental rights. Overview Although the positions taken by each of the eight authors d escribed in Sections A and B fall disparately along a lengthy, nuanced continuum of jurisprudential philosophy, they can more or less be neatly categorized into three ideational groupings. In the first grouping, Roger Levesque, Marjorie Heins, Catherine R interest in protecting children from speech. They each seem to believe that the rationales used in Pacifica Foundation and Ginsberg world the Internet [is] as available to our children as traditional broadcasting [or 99 Although Levesque is a bit more tempered in his approach than the other three, each of re are too many unanswered questions over whether [sexual/violent] material harms children to allow the government to 96 Id. at 717. 97 Id. 98 See infra note IV, 104 and accompanying text. 99 Id. at 719.
50 100 protection censorship situated on terra shifta 101 The solution, according to the anti government involvement camp, is to re protecting ch ildren from speech, renounce Pacifica Foundation and Ginsberg place the responsibility for making these difficult decisions back squarely where it belongs in the hands dren, not in the 102 On the other end of the spectrum, Gregory Laughlin and Kevin Saunders take a more favorable perspective of government involvement in protecting minors from info rmation that could potentially harm both themselves and others. Citing much social science evidence, Saunders and, to a lesser degree, Laughlin bolster their arguments by pointing out detrimental social our nation also has a long history of restricting minors access to speech which is or may be harmful to them. 103 It is worth noting that all six authors on opposite ends of the sp ectrum seem to find incongruence between how the Internet is regulated and how girlie magazines and indecent broadcasts are regulated; they simply propose different approaches to harmonize the dissonance. Whereas the first four want to make broadcast and 100 Id. 101 Catherine Ross, Speech 53 V AND L. R EV 427, 523 (2000). 102 Segall, supra note III, 92 at 719. 103 Gregory Laughlin, to Graphically Violent Video Games be Restricted? 40 U. R ICH L. R EV 481, 544 (2006).
51 Laughlin want to make the Internet more like broadcast and magazines. Unlike Levesque, Heins, Ross and Segall, however, Saunders a nd Laughlin talk much about a societal responsibility to raise children up responsibly. Neither of the pair denies the role of parental involvement, yet each insists that parents alone cannot fulfill their roles adequately without extensive government aid and that together, 104 The final pair of authors, Garfield and McCarthy, arguably fall somewhere in the middle. Altho government involvement leanings find their way into the text, these two pieces each possess decidedly less contentious tones than do the other six. Explaining and synthesizing rather than arguing, these exceptionall y informative authors discuss the pros and cons of both sides and attempt to chronicle what the courts have said without advocating much one way or the other. Although McCarthy concerns himself more with the parental rights aspect of the issue, both nonet heless add a healthy dose of tepidity to a controversial yet fundamental subject. In all, these eight pieces, spanning the course of twenty one chronological years and light years of ideology, comprise a comprehensive scholarly look at many facets to the issues of at least as they stood when the last of the articles was published in 2009. Since then, two Supreme Court decisions Brown v. Entertainment Merchants Association, as well as United States v. Alvare z 105 have added new layers of both complication and clarity that make these issues once again ripe for review. Descriptions of these 104 K EVIN S AUNDERS S AVING O UR C HILDREN F ROM THE F RIST A MENDMENT 86 (2003). 105 132 S. Ct. 2537 (2012).
52 explained in the ensuing part.
53 CHAPTER 4 MOORING THEORY TO PRACTICE This part synthesizes the cases, laws and ideas examined in the previous parts and attempts to demonstrate three distinct types of injuries caused by content based censorship in the name of prote cting minors: 1) harm to the children; 2) harm to parents and other adults; 3) and harm to the relationship between children and their parents. In order to better understand these harms, it is first necessary to discuss three free speech theories that are particularly applicable in tethering these three harms to philosophical bases. The three theories are the marketplace of ideas, democratic self governance, and self fulfillment. This part also addresses the apparently increased standard of proof of caus ation in content based speech regulations, as well as exceptions and legitimate compelling interests of the state in protecting minors from speech. Ultimately, this part supports the adoption of a narrowly tailored set of ideals that affords a broad set o f protections for parental rights and the First Amendment. This part begins with a brief primer on three of the most well established justifications for freedom of speech in the United States. Free Speech Theories Truth Attainment through the Marketplace of Ideas Freedom of speech as a means to test and attain the truth has a lengthy historical tradition. Its seeds were first widely spread in seventeenth Areopagitica. 1 Milton, who argued for the freedom to publish minority views without first 1 J OHN M ILTON A REOPAGITICA A S PEECH FOR THE L IBERTY OF U NLICENSED P RINTING reprinted in C OMPLETE P OEMS AND M AJOR P ROSE 716 (Merritt Y. Hughes ed., 1957) (1644).
54 2 Although not quite as optimistic about the inevitable triumph of truth over falsehood in every encounter, nineteenth notion in his classic philosophical treatise, On Liberty 3 According to Mill, open and free discu 4 ted to show that whether an unpopular 5 veracity, Mill theorized, the right to discuss it should be protected because the integrity of the process eventua lly ensures the highest integrity of speech and subsequently, truth. The dual Millian goals of the marketplace of ideas, then, are the attainment of truth and the testing process by which truth is ascertained. The theory was first imported into First Am endment jurisprudence by Supreme Court 6 In the nearly 100 years since this concept was 7 and, the Court 2 Id. at 739. 3 J OHN S TUART M ILL O N L IBERTY (Penguin Books 1974) (1869). 4 Id. at 111. 5 M ATTHEW B UNKER C RITIQUING F REE S PEECH 6 (2001). 6 Abrams v. United States, 240 U.S. 616, 630 (1919) (Holmes, J., dissenting). 7 C. E DWIN B AKER H UMAN L IBERTY AND F REEDOM OF S PEECH 7 (1989).
55 marketplace, not the squelching of it. 8 As the late First Amendment scholar Thomas Emerson consider all alternatives, test his judgment by exposing it to opposition, and make full use of 9 Just as Mill was more cautious about the ultimate triumph of truth over lies than was Milton, many contemporary scholars have been driven to less than optimistic views of the struggle. Professor Vincent Blasi is an example of such a scholar who, as he observes the widespread acceptance of bad ideas throughout Western democracies, has become somewhat 10 treated as consumer goods [and] discussion and persuasion cannot be analogized to competitive 11 Blasi and others have heavily critiqued the theory, highlighting the dubious assumption of the average market re sulting from unequal access to means of effective communication. 12 13 d, has great value as 14 and remains a staple within Supreme Court opinions and scholarly works. 8 Id. at 8. 9 T HOMAS E MERSON T HE S YSTEM OF F REE E XPRESSION 6 7 (1970). 10 Vincent Blasi, Holmes and the Marketplace of Ideas, 2004 S UP C T R EV 2004, 1, 1. 11 Id. at 8. 12 Id. 13 B UNKER supra note IV, 5 at 8. 14 Id.
56 Democratic Self Government and the Voting of Wise Decisions For philosopher and educator Alexander Meiklejohn, the First Amend ment acts not cultivating the general intelligence upon which the success of self government so obviously 15 Put simply, Meiklejohn theorized that 16 by protecting speech related to issues of public importance or concern and to ensure that everything worth saying 17 Unlike the marketplace of ideas theory, which can arguably encapsulate the full extent of human expression, protection under the democratic self government theory is narrowly confined to a town hall context, sheltering only speech that serves a political or public good. Other speech, Meiklejohn argu ed, was less important and demands less protection. He wrote: The guarantee given by the First Amendment is not, then, assured to all speaking. It is assured only to speech which bears, directly or indirectly, upon issues with which the voters have to d eal only, therefore, to the consideration of matters of public interest. Private speech, or private interests in speech on the other hand, has no claim whatever to the protection of the First Amendment. 18 itical speech drew criticism from the moral entitlement to presume 19 15 A LEXA NDER M EIKLEJOHN F REE S PEECH A ND I TS R ELATION TO S ELF G OVERNMENT 17 (1948). 16 A LEXANDER M EIKLEJOHN P OLITICAL F REEDOM : T HE C ONSTITUTIONAL P OWERS OF THE P EOPLE 26 (1960). 17 Id 18 Id. at 94. 19 R ODNEY S MOLLA F REE S PEECH IN AN O PEN S OCIETY 16 (1992).
57 Acknowledging that the scope of political expression may be broader than he originally rms of thought and expression within the range of human communications from which the voter derives the knowledge, intelligence, sensitivity to human values: the capacity for sane and objective 20 tion in decision making 21 For Emerson, free expression not only covered political matters; it of expression in religion, literatu re, art, science, and all areas of human learning and 22 Under such a broad definition, therefore, little expression exists that cannot, in some way, be related to a political concern Human Dignity: Self F ulfillment and Individual Autonomy through Freedom of Speech Unlike either the marketplace or democratic self governance theories, which view free expression as a means to an end (attainment of truth and furtherance of a body politic, respectively), the self fulfillment theory sees self expression as an end in and of itself. As 20 Alexander Meiklejohn, The First Amendment is an Absolute, 1961 S UP C T R EV 245, 256. 21 E MERSON supra note IV, 9 at 7. 22 Id
58 23 As E man is the realization of his character and potentialities as a human being. For the achievement of this self 24 Emerson argues that restrictions on speech violate human dignity and 25 Given the close relationship between autonomous cognitive being. 26 The late C. Edwin Baker contended that regulations that try to protect people from speech 27 To ofessor Baker argued, individuals should be treated 28 Especially relevant to the context of this discussion, Baker stressed that a law attempting e from harms that result because the listener adopts 29 In short, individuals should have the autonomy to make up their own minds about the speech they hear and th e information they receive; any paternalistic attempt to protect listeners from hearing 23 S MOLLA supra note IV, 19 at 9. 24 E MERSON supra note IV, 9 at 6. 25 Id 26 S MOLLA supra note IV, 19 at 10 11. 27 B AKER su pra note IV, 7 at 59. 28 Id. 29 Id. at 56.
59 use the 30 This theory furthermore 31 In order for any of thes e three theories to extend legal and constitutional protections for speech, courts must bridge the gap between First Amendment theory and doctrine. Robert Post, alize 32 preferred position of freedom of speech might not be butt 33 With this in mind, there is little reason to believe that a critical examination of current child protection censorship cannot be supported by all three of these theories simultaneously. Why Now? Strict Scrutiny and Censorship of Minors in a Contemporary Context The relationship between parental rights and the governmental interest in protecting minors from speech is primed for jurisprudential revisitation Although even the youngest of the three free speech theories outlined above has been entrenched in scholarly literature and judicial opinions for decades, the need for a theoretical reapplication was catalyzed in the last three years 30 Id. at 59. 31 Id at 60. 32 R OBERT P OST Reconciling Theory and Doctrine in First Amendment Jurisprudence in E TERNALLY V IGILANT : F REE S PEECH IN THE M ODERN E RA 153 (Lee C. Bollinger & Geoffrey R. Stone eds. 2002). 33 S MOLLA supra note IV, 19 at 5.
60 by an apparent judi cial shift toward a heightened evidentiary standard of scrutiny placed on legislative attempts to regulate speech because of its content. 34 Unlike the rational basis test 35 and intermediate scrutiny 36 the first and second levels of judicial scrutiny the bur den of strict scrutiny is difficult for the government to satisfy. In order to pass constitutional muster under strict scrutiny, the law in question must not only support a be necessary 37 This means that if there are any other less speech restrictive alternatives of accomplishing the compelling interest, then the law is neither necessary nor constitutional. To uphold the free speech gua rantees of the First Amendment, the Supreme Court historically has applied the strict scrutiny standard to review content based regulations of speech at least when those regulations concern adults. Yet, even as high as the strict scrutiny demands traditio nally have been, two recent Supreme Court cases elevated the standard another notch. 34 Content based speech restrictions which demand the application of strict scrutiny stand in contrast to based speech restrictions, which generally incur intermediate scrutiny; the regulations in thes e other than the message conveyed by expressive activities . such as preserving park property or keeping streets K ENT M IDDLETON & W IL LIAM L EE T HE L AW OF P UBLIC C OMMUNICATION 91 (9th ed. 2014). 35 unconstitutionality. See C HEMERINSKY supra note II, 3 at 540 (writing that l be upheld unless the challenger proves that the law does not serve any conceivable legitimate purpose or that it is not a reasonable way to 36 The intermediate scrutiny standard, like strict scrutiny, places the burden of proo f on the government to show that its law is constitutional. Yet unlike strict scrutiny, which demands the law be narrowly tailored to fit a compelling interest, it is more deferential to lawmakers in that the law under consideration needs to only pertain to an important C HEMERINSKY supra note II, 3 at 540 37 C HEMERINSKY supra note II, 3 at 541.
61 The first case, Brown v. Entertainment Merchants Association 38 considered a California statute that banned the sale or rental of violent video games to minors. In a part icularly pithy 39 State claims that it need not produce such proof because t he legislature can make a predictive judgment that such a link exists, based on competing psychological studies . [but] because it 40 Therefore, the Court ruled, there was no compelling g overnmental interest. Given that the state was attempting to regulate the content of speech, the Court determined that an application of strict scrutiny was necessary. Because California could not meet this high standard, the Court deemed the statute unc onstitutional and struck it down. Although the justices fractured badly in their exact rationale for why the Golden State law violated the First Amendment, they nonetheless decisively concluded in 7 2 fashion that the right of minors to receive speech sup ersedes the presumed government interest in protecting youth from that which may or may not harm them. The second case, United States v. Alvarez 41 in 2012, apparently extended rigorous standard of proof of harm to other areas of speech. In consid ering whether non commercial, false claims are protected under the First Amendment, the high court in Alvarez invalidated the federal Stolen Valor Act, 42 which criminalized false statements about winning 38 131 S. Ct. 2729 (2011). 39 Id. at 2738. 40 Id. at 2738 2 739. 41 132 S. Ct. 2537 (2012). 42 18 U.S.C. § 704 (b), (c) (2010).
62 43 Kennedy continued to opine that 44 With this ruling, the Court again determined that in conten t regulation cases, if the link between the regulation and the government interest is either nonexistent or dubitably weak, then the law fails strict scrutiny. Yet beyond the introduction of a heightened standard of scrutiny to content regulation cases, Brown raises a more specific, but no less profound, question: When the Supreme Court is balancing the interests of free speech and the protection of children, how egregious must the harm from the speech be in order to tip the scales toward regulation? Fu rthermore, how much proof of that harm must be demonstrated by the government? Historically, the high court was speech. Prior to Brown, the two seminal cases on th is issue were Ginsberg v. New York 45 and Federal Communications Commission v. Pacifica Foundation. 46 In Ginsberg, the Supreme even though the magazines were suitabl e for adult consumption. In Pacifica, the Court upheld afternoon because the broa dcast was considered indecent and might be heard by children. 43 Alvarez, 132 S. Ct. at 2549. 44 Id. 45 390 U.S. 629 (1968). 46 438 U.S. 726 (1978).
63 This pair of cases judicially confirmed the cultural assumption in both print and broadcast media that children should be shielded from sexual speech that their elders had a constitutional rig ht to hear and see. The rulings in both cases were based on the assumption, as Justice William Brennan wrote for the majority in Ginsberg that minors possess certain vulnerabilities that inhibit their ability to make informed, mature decisions. He there fore rational 47 which was a postulation in this case the Court found reasonable. In a concurring opinion, Justice Potter Stewart underscored this assumption of immaturity the right to marry, for example, or the right to vote deprivations that would be 48 Although Pacifica further entrenched the supposition of immaturity and the governmental interest in protecting youth, the implicit assumptions of Ginsberg proceeded relatively unchallenged judicially over the last several decades. They have continued, writes Professor Alan Garfield, despite the fact that the ostensible harms to be prevented rarely warrant First message either will be psychologically disturbing to a listener or will encourage a listener to 49 At least among adults, he continues, such reactive harms could suppress speech it 47 Ginsberg, 390 U.S. supra note IV, 45 at at 639 (emphasis added). 48 Id. at 650. 49 Garfield, supra note III, 54 at 607.
64 50 The constitutional flashpoint, then, is determining the reasonableness of the a ssumption of vulnerability and beyond that, the importance of any governmental interest upon which constitutionally responsible policy can be founded. Unfortunately for the sake of clarity, existing social science data on the subject offer little firm evi dence that children are harmed either by exposure to violent or sexually explicit material. 51 Although the courts lack scientific guidance for both types of potentially offensive speech, judges are generally more tolerant of sexual speech restrictions tha n suppression of violent content. 52 Even as Justice Brennan admitted in Ginsberg regarding sexual speech: factor in impairing the ethical and moral development of our yout h and a clear and expresses an accepted scientific fact. . [T]he growing consensus of commentators is that while these studies all agree that a causal link has not been demonstrated, they are equally agreed that a causal link has not been disproved either. 53 The nearly half century since Ginsberg has yielded few compelling scientific links and there is little hope that more will be made any time soon. 54 Regarding violence recent aggregate 50 Id. 51 See id. 52 See Ross, supra note III, 68 at 504 505 (relating that the distinction between sexual speech and violent speech remains c onfusing and problematic for both social scientists and would results of empirical studies about the effects of speech make it important to distinguish speech about sexuality from speech about violence. Although it is nearly impossible to find an iota of evidence that controversial speech about sex harms children, speech concerned with sexuality is the content most commonly subject to regulation on their behalf, in contrast to speech with violent content. For ex ample, during one debate, five of the eight articles cited on the Senate floor in support of regulating indecent speech expressly examined the impact of material about violence or suicide rather than the indecency targeted by the legislation. The FCC, in turn, relied on the same evidence about violent speech in defending its abridgement of sexually explicit speech that it did not dispute was protected under 53 Ginsberg, 390 U.S. supra note IV, 45, at 642. 54 See Segall, supra note III, 92
65 video game violence exposure, nor television violence exposure, were prospective predictors of serious acts of youth aggression or violence, 55 56 Garnering scientific evidence may be even more problematic for sexually explicit speech. television broadcasts in Federal Communications Commission v. Fox Television Stations, Inc. 57 Justice Scalia elaborated on the problems with requiring scientific evidence of harm. He wrote here are some propositions for whic h scant empirical evidence can be marshaled, and the harmful effect of broadcast profanity on children is one of them. One cannot demand a multiyear controlled study, in which some children are intentionally exposed to indecent broadcasts . and others 58 In light of his opinion in Brown that elevated the strict scrutiny standard in content Fox two years prior are indicative of how constitutionally difficult the issue of child based speech regulation has become. 59 The ostensible harms of speech to minors cannot be tested; as Justice Scalia suggests, what institutional review board would permit the systematic exposure of minors to offensive speech for the sake of scientific inquiry? 55 Christopher Ferguson, Video Games and Youth Violence: A Prospective Analy sis in Adolescents J OU OF Y OUTH AND A DOLESCENCE ( online ed .) Dec. 14, 2010, at 1. 56 Christopher Engelhardt, et al This is your Brain on Violent Video Games: Neural Desensitization to Violence Predicts Increased Aggression Following Violent Video Game Exposure, 47, 5 J OU OF E XPERIMENTAL S OCIAL P SYCHOLOGY 1033, 1033 (2011). 57 556 U.S. 502 (2009). 58 Id. at 519. 59 See id. (continuing that or at least the behavior that is presented
66 F scientifically suggested in order for government intervention to take place. Unlike many of the so called hard sciences, in which specific variables and factors can be shown to directly and predictably contribute to certain phenomena, social sciences, by their nature, can rarely ever variables, which makes the link between exposure to con tent and long term ill effect virtually impossible to prove, even if a strong correlation could be made. Semantically, then, Justice an untenable standard At some point, then, assumptions based upon correlation alone rather may be necessary in order to create coherent, constitutionally tenable policies. As lawmakers craft such policies, it seems natural to assume that the government possess es an independent interest in the upbringing of non violent, non deviant, moral youth who will contribute to society rather than burden it. 60 The link between this interest and the but conclusive, 61 yet despite this lack of definitive causal proof, the assumption remains culturally, legislatively and 60 See [p]arens patriae means literally parens patriae action has its roots in the common law concept of the roya l prerogative. The royal prerogative included the right or responsibility to take care of persons who are legally unable, on account of mental incapacity, whether it proceed from 1st. nonage: 2. idiocy: or 3. lunacy: to take proper care of themselves and their property. At a fairly early date, American courts recognized this common law concept, but now in the parens patriae is inherent in the supreme power of every State, whether that power is lodge d in a royal person or in the legislature [and] is a most beneficent function . often necessary to be exercised in the interests of humanity, and for the prevention of injury to those who cannot 61 See Garfield, supra note III, 54
67 government has a compelling interest in pr otecting minors from sexual speech is so established 62 Just as legitimate as the governmental interest in non deviant youth, it would seem, is the interest in well educated, knowledgeable yo uth who can likewise contribute to society rather than burden it. Yet unlike the link between non deviancy and child censorship, the connection between an educated populace and access to information is a chain fortified with a heavily reinforced social sc ience alloy. 63 Of course, the two interests, while not mutually exclusive, sometimes find themselves in a competition that necessitates a balancing test to determine which interest is more compelling. In light of Brown and Alvarez, there has never been a b etter time than now, even as Professor Catherine Ross suggested fourteen years ago, 64 to re youth from potentially objectionable speech. Doctrinal Application of Theory As outlined in the Literature Review, mult iple scholars have attempted to demonstrate even before the Brown and Alvarez decisions that the assumption of harm (and the governmental interest based on the assumption) is premised neither on sound constitutional jurisprudence nor common sense. 65 This s ection analyzes some of these assumptions and looks 62 Id. at 614. 63 See Roy Balleste, The Internet Governance F orum & Technology: A Matter of Human Development, 7 L OY L AW & T ECH A NN access to information is a prerequisite for the enjoyment 64 Ross, supra n ote III, 68 65 Supra Part I I I.
68 at how they affect the well being of minors, parents and the relationships between adults and their children. Effect on Children The constitutional right of free speech is accompanied by the implicit corollary right to 66 This concept was emphatically reaffirmed a quarter century later when Justice Thurgood Marshall declared, now well established that t he Constitution protects the right to receive information and ideas. . This right to receive information and ideas, regardless 67 Yet as Ginsberg and Pacifica illustrate, what is fundamental for the goose is not necessarily fundamental for the gander. Professor Roger Levesque rued this fact when he wrote, No commentators and no courts overtly argue that the Constitution should be set aside when they determine the rights of adolescents. Yet in practice and implicitly, they pervasively do set 68 cial and intellectual development by limiting their exposure to certain ideas. Levesque further asserts that appears remarkably strong. The adolescent period is marked by the manner youths actively 69 66 Martin v. City of Struthers, 319 U.S. 141, 143 (1943). 67 Stanley v. Georgia, 394 U.S. 557, 564 (1969). 68 L EVESQUE supra note III, 1 at 250. 69 Id. at 252.
69 As described earlier in this part, 70 the dual purposes of the marketplace of ideas are attainment of truth and the testing process through which truth is asce rtained. The marketplace metaphor does not connote a panoptically benevolent bazaar that assumes all ideas are of equal value and worth. Any physical market will temporarily house goods both that fly off the shelves and those that collect dust due to lac k of consumer interest; many products will be discontinued altogether. So, too, is the market of ideas. The problem is not whether an idea is not accepted or embraced. The rejection of bad ideas is part of the Millian vetting process of determining tru th. The problem in this case, then, is not that an idea has been considered and rejected; it is that for minors, certain ideas are not even permitted in the marketplace at all, so there is no way to tell if the merchandise is good or bad. The ostensibly offensive ideas are simply presumed corrupt and banished to the ideational black market without the chance to legitimately prove themselves. This forced removal of certain types of speech from the marketplace of ideas, then, seems to s very point. This troublesome tendency is compounded because, as Professor Eric Segall points out, 71 The resulting lack of definition and evidence of injury gives bo th judges and lawmakers however well intentioned dangerously broad latitude to censor speech that could presumably harm children. Even if definitions were laid out and empirical evidence of harm were found, however, by itself, justify a First Amendment exception for child 70 Supra Part IV Section A. 1. 71 Segall, supra note III, 92 at 715.
70 minors would be upset by a wide range of information, including information about AIDS, abortion, 72 Levesque concedes that minors are certainly likely as are adults to mishandle ideas potential for mistakes does adolescent development actually depends on opportunities to practice and engage in processes of trial and error. Those experiences facilitate the development of self knowledge, a better sense of 73 This concept can be directly applied to the controversial and currently litigated laws recently passed in California and New Jersey that restrict doctors and counselors from engaging in SOCE with minor s, regardless of the wishes of either parents or the minors themselves. 74 Even though, as Columbia University psychology Professor Paul Appelbaum pointed out, no 75 the st ates of California and New Jersey nonetheless removed speech related to sexual orientation from the marketplace of ideas for a large portion of the population by criminalizing its very utterance. mful topics is problematic not only within the marketplace of ideas metaphor, but it is also troubling from the democratic self 72 Garfield, supra note III, 54 at 615. 73 L EVESQUE supra note III, 1 at 254. 74 See supra notes 2 4 (describing C AL B US & P ROF C ODE § 865.1 (2013) and A3371, Reg. Sess. (N.J. 2012 13)). 75 Paul Appelbaum, Regulating Psychotherapy or Restricting Freedom of Speech? Orientation Change Efforts P SYCHIATRIC S ERVICES A M P SYCHOL A SS N Jan 1, 2014.
71 free speech to ensure self governa nce and foster civic participation, then adolescents own a 76 If the application of self 77 then this justification would do little to support the speech access rights of minors. Yet as illustrated above, this is a spurious conception because the realm of speech applicable to 78 is vast and certainly encompasses sp eech applicable to minors. But even if wise voting alone encompassed the scope of democratic self governance and expression, the view would nonetheless be shortsighted because the non voters of today are the voters of tomorrow. Levesque makes the Meiklej ohnian connection to minors this way: Democracy thrives when it makes information available and helps citizens develop the ability to process information thoughtfully. When democracy thrives, thoughtful citizens foster respect for the dignity and worth of every human being and a tolerance of difference, a willingness to engage in public policy issues beyond the act of voting, a readiness to exercise civil rights when they are threatened, a commitment to civil and rational discourse, and concern for the com mon good. This readiness emerges only with deep commitments, and such commitments only arise after fully engaging ideas. 79 choice making process and from the necessity to confront, evaluate, and make choices based on 80 When information and resources are restricted, therefore, society runs the risk of raising generations of dullards who posses little ability to make decisions or pars e through difficult ideas factors that are directly deleterious to the democratic 76 L EVESQUE supra note III, 1 at 254. 77 M EIKLEJOHN supra notes IV, 16 at 26. 78 E MERSON supra note IV, 9 at 7. 79 L EVESQUE supra note III, 1 at 256. 80 Id. at 253.
72 process. Judge Richard Posner expounded further upon this concept while writing for the Seventh Circuit Court of Appeals regarding the rights of minors to access controversi al video game content: Children have First Amendment rights. This is not merely a matter of pressing the First Amendment to a dryly logical extreme. The murderous fanaticism displayed by young German soldiers in World War II, alumni of the Hitler Jugend, 81 illustrates the danger of allowing government to control the access of children to information and opinion. Now that eighteen year olds have the right to vote, it is obvious that they must be allowed the freedom to form their political views on the basi s of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise. . People are unlikely to become well functioning, independent minded adults and responsible citizens if they are raised in an intellectual bubble. 82 governance and powerful protections. . The Supreme Court has, accordingly, recognized a distinction between high value and low 83 with speech of political importance at the top. In its controversial 2010 ru ling in Citizens United v. Federal Election Commission 84 the Supreme political speech must prevail against laws that would suppress it, 85 81 See Gabriel Teninbaum, Reductio ad Hitlerum: Trumping the Judicial Nazi Card 2009 M ICH S T L. R EV 541, in a rule that proposes that as an online discussion grows longer, it becomes a near certainty that someone will support communication, such as appel 82 83 D AVID S TRAUSS Freedom of Speech and the Common Law Constitution in E TERNALLY V IGILANT : F REE S PEECH IN THE M ODERN E RA 37 (Lee C. Bollinger & Geo ffrey R. Stone eds. 2002). 84 558 U.S. 310 (2010). 85 Id. at 340.
73 86 Justice John Paul Stevens further 87 within free speech jurisprudence. As this concept concerns minors, Garfield makes the following application: the core of the First Amendment values suggests that child protection censorship denying minors a ccess to political speech clearly would be unconstitutional. This principle ensures that efforts to deny minors access to information about socialism or the Vietnam War, for example, would be promptly invalidated. Despite this seemingly clear constitution al directive, legislatures and judges often presumed innocence at the expense of freedom of speech and thought. Few issues, for instance, are more embroiled in co ntemporary United States politics than abortion. 88 Yet in the summer of 2013, the Supreme Court declined to hear a Colorado case in which abortion protestors were banned from demonstrating near a church because their larger than life sized photographs of a 89 The Colorado appellate court that made the ruling based its decision principally on the premise that 90 Despite the fact that the speech was of direct 86 Id. 87 R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992). 88 See Among the issues in the United States today that are divisive and inflammatory, none is so hotly debated as that of abortion. On the national stage, the issue is front and center in the halls of Congress, on the political campaign trail, and in many state legislatures. Indeed, contending that the abortion issue is not one of great public interest and importance is as unsupportable as contending that the Earth is flat or the sun rises in the west and 89 v. Scott, 194 P.3d 475 (2008). 90 Id. at 484.
74 political concern and took place peaceably in a traditional public forum (the street and sidewalk across the street from the church), 91 the unsubstanti ated assumption of harm to minors was 92 according to Ninth Circuit principles [that] allow[s] th e government to restrict speech based on listener reaction simply because the listeners are children. 93 In cases such as this, the so called intellectual bubble and the voting of wise decisions are arguably not even the most pressing concerns. Because mi nor based speech regulations generally do not differentiate between seven year olds and seventeen year olds, 94 certain minors can be categorically denied material directly relevant to them. In the case of the abortion related speech, for instance, it seems ludicrous to suggest that a teenaged boy old enough to impregnate a girl or a teenaged girl old enough to become pregnant should be isolated from information that could very well pertain directly to their lives. The transitional teenage years, Levesque writes, are critically important for personal growth and development, both physically and mentally. As youth increasingly discover new 95 Suc h webs are significant, he writes, because [i]ntrinsically, free speech promotes and reflects human personality and fosters the essence of human dignity. Autonomy to think, listen, and speak for oneself is essential to a free and self determining personh ood, the true foundation of liberty. 91 Id. at 478. 92 T HE N EGRO AND THE F IRST A MENDMENT (1965) rticular message. 93 Center for Bio Ethical Reform v. Los Angeles County Sheriff Dept., 533 F.3d 780, 790 (2008) 94 See H EINS supra note III, 35 to minors censorship frequently fails to make these age and maturity based distinctions. Too often, it merges toddlers, grade schoolers, and teenagers into one vast 95 L EVESQUE supra note III, 1 at 239.
75 democracy, First Amendment law now recognizes the role free expression plays in private as well as broader public spheres, including the search for truth, self realization, [and] self fulfillment. 96 But self realization and self fulfillment are abridged, C. Edwin Baker asserted, when citizens (including minors, presumably) are barred from hearing about certain ideas. 97 Minor based cen sorship, though, may not only be an affront to personal dignity, self realization and autonomy. When youth are denied access to certain ideas, they may also be placed in an intellectual bubble, barred from information that may be important to their wellbe ing, denied access to the full marketplace of ideas and rendered developmentally stunted. As concerning as this may be, however, minors, themselves, may not the only demographic harmed by regulations Effect on Parents and Other Adults The primary difficulty of speech regulations in general is determining what, exactly, to 98 99 Considering the dearth of evidence as to what is actually harmful, censors are left to personal intuition and anecdotal accounts to select certain words, phrases or ideas that could be construed detrimental. One oft cited example to illustrate 96 Id. 97 B AKER supra note IV, 7 at 59. 98 Winters v. New York, 333 U.S. 507, 510 (1948). 99 Cohen v California, 403 U.S. 15, 25 (1971).
76 100 onsumption? What about adults? The presumption upon which child protection censorship is founded is that children are 101 Although scientific evidence firmly supports the concept that minors typically tend to act less rationally than adult s, 102 the enormous number of exceptions to this generality renders attempts to apply it to policy potentially questionable. For if the state were granted the authority to shield information from any demographic based solely upon presumed maturity or lack th ereof, then it is likely that in terms of absolute quantity, not percent more speech would be mature than adults is based upon crude generalizations. To say that children make fewer 103 If the notion of the state blocking the spee ch access of millions of immature adults seems unconstitutionally intrusive, why does it seem any less intrusive for minors? The potential danger of this line of reasoning is perhaps better illustrated by turning the rationale on its head. 100 Ross, supra note III, 68 at 456. 101 Garfield, supra note III, 54 at 607. 102 See Laurence Steinberg, et al., Are Adolescents Less Mature than Adults?: Flop, A M P SYCHOLOGIST 64 (7), 583, 594 (2009) (asserting politicians, advocates, and journalists seeking a uniform answer to questions about where we should draw the line between adolescence and adulthood for different purposes under the law need to consider the asynchronous nature 103 L EVESQUE supra note III, 1 at 603.
77 A enterprising well meaning legislator may, for instance, ask himself the question another way: the betterment of our democracy, also construct legislation to prevent certai n ideas entering the But even if the potentially artificial distinction of maturity remains intact and adults are legislatively permitted to access that which is intended for them, then minor protection regulations still pose p make all speech agreeable for the lowest common threshold of tolerance, then the result, as the Supreme Court ruled in Butler v. Michigan 104 is the to 105 In Butler the defendant was charged with selling a police officer a book that was considered by the trial court to be potentially harmful to the morals of youth were it to fall into uarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to 106 With this decision, the Court determined that depriving adults of speech merely to shield minors is an excessive reaction to a relatively small problem. Such concerns of vagueness and overbreadth have plagued child censorship for decades. More than ten years ago, Professor Charles Lugosi wrote that Amendment rights, which attempts to lessen the psychological harm that might be inflicted on an 104 352 U.S. 380 (1957). 105 Id. at 383. 106 Id.
78 107 In the early days of the Internet, for example, the high court struck down two federal laws intended to keep minors from accessing potentially offensive speech online because enforcing the laws would have created the unintended consequence of barring adults from content access. 108 But similarly overbroad statutes such as the Colorado abortion protest ban that was permitted to stand last year 109 have remained on the books. In such cases, the governmental attempts to protect minors from emotional or psychological distress effectively blocks both children and adults in a specific location from exposure to the speech, thus igniting the domiciliary edifice with a regulatory Zippo. speech rights are caught up in regulations intended for those under eighteen years of age, all the theoretical pr oblems discussed in the previous section regarding the marketplace of ideas, democratic self governance and personal autonomy also come into play. For in such cases, not only are minors subject to injuries of dignity, self realization, knowledge and perso nal development, but their elders are as well. Effect on the Relationship b etween Children and their Parents Much of the Ginsberg opinion, as well as the subsequent discussion of the child speech access issue, revolves around the assumption that parents n eed governmental help raising their offspring. William Brennan scribed for the Ginsberg 107 Charles Lugosi, The Law of the Sacred Cow: Sacrificing the First Amendment to Defend Abortion on Demand 79 D ENV U. L. R EV 91, 98 (2001). 108 See supra note I, 18 regarding the Communications Decency Act and its legislative kin, the Child Online Protection Act. 109 See supra v. Scott).
79 guidance cannot always be pr parents a legitimate government interest and if so, how compelling is it? As explained i n detail in an earlier part, the substantive due process rights of parents rarely face serious judicial opposition. 110 Individual and familial autonomy rests at the heart of the Constitution. As the high court first expressed in Meyer v. Nebraska and then carried over to 111 In Meyer the Court constitutionally contextualized the Republic : to be common, and their children are to be common, and no parent is to know his deliberately approved by men of great genius, their ideas touching the relation between individual and State were wh olly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution. 112 Violence is wro ught, however, when the state unduly intervenes with the parent child relationship by acting on the supposition that it knows how to raise a child better than his or her parents do. Ross contends that this is the precise effect of most child censorship ef forts. She on speech actually empower any family reveals that regulations on speech adopted to protect children in fact threaten to undermine parental aut 113 Garfield 110 Supra Part I I 111 Prince v. Mas sachusetts, 321 U.S. 158, 166 (1944). 112 Meyer, 262 U.S. supra note II, 39, at 401 402. 113 Ross, supra note III, 68 at 477.
80 control, therefore, rests on shaky ground. The fact that parents have a constitutional right to control their ch censorship. 114 Regarding such censorship, it is worth noting the important distinction between government regulations intended to help parents raise their children and governmenta l regulations intended to help children, regardless of their parents. In the latter type of situations, parents may be either unable or unwilling (or nonexistent in the case of orphans) to determine appropriate times to expose their children to certain id eas. To allow for such cases, the government does have an obligation to protect minors from harm physical harm in particular. Yet the Ginsberg rationale that parents need governmental help raising their children is based on at least three dubious assumpt 115 The second notion is that all minors require protection. The third is that all parents actually nee d or want help in the first place. Reconsidering these fundamental assumptions may reveal that the presumed government interest of helping parents raise their children by blocking their access to certain ideas may be counterproductive. Instead of helpin g the relationship between parent and child, the well 116 And when the state 114 Garfield, supra note III, 54 at 617. 115 Id. 116 Ross, supra note III, 68 at 483.
81 does inte 117 Not every family is alike, and the unequivocal precedents of Meyer, Pierce and other cases ensure that the governmen t cannot constitutionally construct laws that attempt to homogenize families or children. While discussing the different types of parenting styles, Ross disparit ies make it nearly impossible for the government to establish criteria that will not favor 118 progeny from learning too much too quic which types of speech the government could ban. Otherwise, the government could deny minors access to information about atheism or the Cuban revolution simply because parents supported 119 It bear s pointing out that if some parents wish to withhold information about the Cuban revolution or anything else from their own youngsters until the parents think their children can understand what it means, it is within their constitutional rights to do so. Who is withholding information is of primary importance, although ideally, as the marketplace of ideas, democratic self governance and individual autonomy theories suggest, minors should have access to as wide a range of information as they can intellectua lly handle, especially in their teenage years as their cognitive abilities are in full bloom. 120 117 Id. at 477. 118 Id. at 481. 119 Garfield, supra n ote III, 54 at 621. 120 In some European countries, age based considerations for both emotional and cognitive maturity are more by year (such as
82 government has a compelling interest in censoring speech to assist parents, it must explain why parents shou 121 But unfortunately for the sake of wide ranging governmental regulatory attempts that generally block information to six year olds and sixteen year olds alike, every human matures at a different rate. This contributes to the unfortunate tendency of many regulatory attempts to be clumsy, counterproductive and, far too often, unconstitutionally overbroad. 122 Instead of silencing constitutionally protected speech, then, a much more constit utionally responsible solution would be for minors, when confronted with offensive language, to perform the same action that the Supreme Court suggested to their elders: avert their eyes to avoid further sensory bombardment 123 or even bury their faces in the ir hymnals. 124 The key to this concept is not that keeping any idea from any child is always wrong. Some children most assuredly need sheltering from certain ideas until they are mature enough to handle them reasonably. But who is better suited to make su ch determinations if and when they need to be made? Parents, rather than the government, certainly possess a clearer, more individualized and nuanced understanding of what information, if any, should be shielded from and content specific regulations. H EINS supra note III, 35 at 217 219. 121 Id. at 617. 122 Courts have applied this concept on several occasions, including the Seventh Circuit Court of Appeals in American Amusement Machine Association v. Kendrick (244 F.3d 572 (2001). In Kendrick, the court opined that year personal to him rather than a right to be exercised on his behalf by his parents, the right of parents to enlist the aid of the state to shield their children from ideas of which the Id. at 577. 123 Cohen v. Ca lifornia, 403 U.S. 15, 21 (1971). 124 See supra note IV, 89 194 P.3d 475 (2008)), protestors were banned from appearing near a church because the pictures they held were deemed disturbing to m inors).
83 its own value preference and judgments for parental discretion regarding otherwise legal 125 Policies based upon a carte blanche assumption of speech catalyzed, universal corruptibili abilities to provide each child an individually tailored approach handling mature subject matter. But beyond these problems, such regulations also hint at an even more insidious threat to label parents who disagree with majoritar 126 This type of scenario, platonically ideal though it may be, 125 Ross, supra note III, 68 at 486. 126 Id. at 482.
84 CHAPTER 5 CONCLUSION The introduction proffered three basic questions to be analyzed over the course of this thesis. The condensed evaluations of each are concisely summarized below. What A re the nter ests in Protecting Minors from D istaste ful and/or Potentially Harmful S peech? The ambiguity and lack of explanation from the Ginsberg court regarding why minors need more speech regulations than adults denote how firmly established the presumed state interest in child censorship has become. 1 Sci entific evidence concerning minors and violent speech is inconclusive; and evidence about minors and sexual speech is difficult or unethical to obtain. So if the interest is not open to empirical criticism, what type of analysis is appropriate when consid Ginsberg mentality this way: Ethical and moral questions are by their nature not susceptible to empirical proof. interest miss the concern: whether the State has a legitimate or compelling interest in inculcating moral and ethical values in children by controlling their access to indecent materials as a step towards creating a morally virtuous citizenry. 2 The more relevant question may become, then, is the government the most suitable vehicle through which values can be inculcated? Ross, Heins, Segall, Garfield and Levesque tend to think often reflects concerns about social anxieties and personal morality rather than any demonstrable 1 Garfield, supra note III, 54 at 614. 2 L EVESQUE supra note III, 1 at 195.
85 3 In fact, Garfield suggests, the inte rest in protecting minors has historically been a family matter anyway, beyond the scope of state concern: The concept of sheltering children from speech is largely a modern conceit. . were married off as close to puberty as possible, [ sic ] did not need sheltering from sexually explicit speech. Similarly, contemporary children living in war torn countries. . need more than limited access to violent video games to learn peaceful confli ct resolution. 4 This is not to make the flippant contention that some sense of childhood naivety is not a pleasant luxury suitable for certain families who choose to indulge in the propagation of juvenile obliviousness for the sake of social and parental e xpediency. But the furthering of such a model is hardly a compelling interest. It would be nice for no child to ever be emotionally scarred. It would also be nice for no child to ever mimic evil speech or replicate wickedness they observe on a televisio especially when it may be at odds with a quality education, personal development, parental rights or the First Amendment. This line of reasoning indicates, then, that a government interest is scant, and ought to be judicially treated as such. Surely the government possesses a strong parens patriae independent interest in protecting children from physical abuse or neglect, no matter who the abuser or neglector may be. B ut the line between abuse and access to speech is a thick one, and until the line is crossed, the government may be better off remaining a neutral, disinterested party when it comes to what children may see or hear. 3 Ross, supra note III, 68 at 522. 4 Garfield, supra note III, 54 at 567.
86 How Much P roof of Actual Harm to Minors from S peec h is Required b efore the State S hould be Allowed to Intervene and Offer P rotection? The fact that little evidence exists linking actual harms to speech access is troublesome. Yet even if discernible harms were determined, laws intended to curb t he effects of such speech would still need to be handled delicately in order to best balance all interests involved. For instance, if scientifically valid studies linked a correlation between exposure to SOCE and a propensity to suicide, or between playin g first person shooter video games and a tendency to get into fights, or between viewing photographs of aborted fetuses and a proclivity toward delinquency, then ad hoc balancing tests would likely be necessary to determine if the amount of harm caused wou ld justify the abridgment of fundamental liberty interests. For if such balancing too convenient guise 5 a phenomenon illustrated by a recent example from the United Kingdom. In February 2014, the Scottish Parliament passed (with 103 yeas and fifteen abstentions) the Children and Young People Bill, which attempts to preemptively control potential child ab use by specifically assigning a government sponsored social worker to care for every single person in Scotland under the age of eighteen. 6 Appalled by the law, a pair of commentators wrote in The Scotsman : No doubt those who voted for the imposition of a they thought it would save lives, or intervene in cases of child abuse or child neglect etc. However, there is already a social work structure for such matters and people whose entire energies are devoted to the care and protection of children. . These terrific people are called parents and their role in life is to bring up their own 5 See Andrew Kramer, Russians Selectively Blocking Internet, NY T IMES March 31, 2013, at B2 (describing how 6 Children and Young People (Scotland) Bil l, 2014, (SP 27B) Session 4.
87 children without extra busybodies sticking their noses into their lives. For every family that has abused their children, there must be at least one public servant who has taken children away from their family, often in instances that take the breath away. . You could never imagine such a law standing up to t he scrutiny of the U.S. Supreme Court. 7 Yet Catherine Ross imagined it fourteen years ago, when she stated that these kinds of 8 away from child protection censorship, because even well intended y have been used in an effort to legitimize government 9 What constitutes parental nonconformity becomes the dicey issue. As Garfield explained respond that the absence of a ban would 10 Hypothetically, then, if scientific evidence were discovered suggesting that exposure to these words were harbingers of deviancy or societally detrimental activity, would liberal fathers and mother language? In the absence of scientific evidence illuminating these issues, such contemplations are somewhat heuristic. Vague statistical correlations add little t o the discussion. Yet if strong correlational indications do become available, courts would need to critically weigh several factors to determine whether the harm caused by allowing minors to access potentially harmful 7 Andrew Gray & Otto Inglis, or Orwellian Busybodies?, T HE S COTSMAN Feb. 22, 2014, accessed online at http://www.scotsman.com/news/opinion/letters/guardians or orwellian busybodies 1 3314166 8 Ross, supra not e III, 68 at 482. 9 Id. 10 Garfield, supra note III, 54 at 621.
88 speech is the lesser of two evils th e other being the guaranteed abridgment of constitutional freedoms. What Legal Standards S hould be Employed in D etermi ning when Speech is Harmful to M inors? While writing for the 8 1 majority in Snyder v. Phelps, 11 a decision that upheld the right of a fringe political faction to protest at a U.S. military funeral, Chief Justice John Roberts sorrow, and as it did here inflict great pain. On the facts before us, we cannot react to that 12 As exceptional as this chosen course is, however, it is not devoid of the occasional speaker punishing spe ed bump Basic First Amendment jurisprudence insists that regulations of speech based upon content or are presumptively unconstitutional. In order to be upheld, such laws must pass strict scrutiny rather than a simple rational basis test as was used in Ginsberg which merely determines whether the legislative body that enacted the statute acted rationally. Considerations regarding how to apply standards of review are necessary now more than ever, especially in the wake of Brown v. Entertainment Merchants Association which raised the bar lawmakers must hurdle in order to censor speech based on content. Based on the lack of scientific support to adjudicate otherwise, courts would do well to simply take the two pronged test of strict scrutiny and apply it directly to content regulation cases regarding minors: First, is the protection of minors a compelling government interest? 11 131 S. Ct. 1207 (2011). 12 Id. at 1220.
89 Second, is the law narrowly tailored to meet the interest while abridging the least amount of speech possible? The general answer to the first question can vary, but is often no. Because there was no link between the speech and presumed harm in Brown for instance, there was no harm and, ther efore, no interest. Assuming an actual interest exists, however, the answer to the second prong is also often no, because less intrusive means available to achieve the interest usually exist. 13 As the commentators for The Scotsman pointed out in Scotland example of government infringement, less intrusive means of protecting children are palpably Furthermore, the accompanying, unintended harms of some regulations not only render such efforts constitut ionally questionable, but all too often they are also tangibly detrimental to based legislation what renders it deserving of the high standard of strict scrutiny is not that it is always used for invidious, thought control purposes, but that it lends itself to use for those 14 The first layer of those purposes can come from limited access to the marketplace of ideas, intellectual and civic impedance and de velopmental retardation. Also, vagueness and overbreadth of such laws are often problematic for both children 15 and their parents, because 13 The non from perfect, are rapidly expan ding. Even as technology increases the amount of potential speech available to minors, so, too, is the advancement of technology better equipping parents to monitor and censor what their children can see and hear. See Cheryl B. Preston, Zoning the Intern et: A New Approach to Protecting Children Online, 2007 B.Y.U.L. R EV 1417, 1467 simple change in technology can open new possibilities for 14 Hill v. Colorado, 530 U.S. 703, 743 (2000) (Scalia, J., dissenting). 15 For example, the outlandishly vague legislative standard in of reg ulatory overhaul for everything from Discovery Chanel documentaries about tarantulas to the celebration of Halloween. See Scott, 296 P.3d, supra note IV, 89 at 278.
90 rights are also usurped because an ersatz governmental paternalism can replace the genuine 16 This is not to say that the state possesses no interest in the physical (if not the psychological) protection of children. It is certainly an important or even a compelling interest. But if, as the opinion in Ginsberg o foster 17 then perhaps it is high time to reconsider 18 for nei ther the parent child relationship nor the child himself is generally better off on account of it. When there is an apparent conflict between protecting the presumed innocence of youth and other fundamental liberties, it is important for courts to remember that the free speech rights of minors and adults, as well as parental rights, are compelling governmental interests in and of themselves. So ultimately, therefore, if there is to be suppression regarding what minors are allowed to access, courts should a djudicate under the presumption that, both practically and constitutionally, parental guidance is generally superior to governmental censorship. 16 Segall, supra note III, 92 at 715. 17 Ginsberg, 390 U.S. supra note IV, 45 at 640 64 1. 18 Ross, supra note III, 68 at 482.
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97 BIOGRAPHICAL SKETCH Eugene ( Minch ) Minchin is a ninth generation Floridian who received his undergraduate degree from the University of Florida College of Journalism and Communications. He also received hi s M.A.M.C. from U.F. in the spring of 2014 and currently resides with hi s wife, Suzanne, in Gainesville. He is slated to begin doctoral work in media law at U.F. in f all 2014.