INTRODUCTION :: The notion that children need to be sheltered from inappropriate speech long predates Janet Jackson’s “wardrobe malfunction” or Bono’s expletive-enhanced acceptance of a Golden Globe. Plato expressed concern about youths’ impressionable minds 2300 years ago, stressing that the tales the “young first hear should be models of virtuous thoughts.” John Stuart Mill, writing 2000 years after Plato, similarly endorsed limits on children’s speech rights. The rights he described applied only “to human beings in the maturity of their faculties” because young people were not “capable of being improved by free and equal discussion.” All of this, of course, long preceded Federal Communications Commission (FCC) Chairman Michael Powell’s clampdown on broadcast indecency and Howard Stern’s characterization of the clampdown as a “McCarthy-type witch hunt.”
Notwithstanding its ancient lineage, the concept of sheltering children from speech is largely a modern conceit. The concept, after all, presupposes a “childhood”-a prolonged period of innocence-that was rare in premodern times and continues to be rare in many parts of the world. Put bluntly, children in the Middle Ages, who slept in their parents’ beds and were married off “as close to puberty as possible,” did not need sheltering from sexually-explicit speech. Similarly, contemporary children living in war-torn countries like Congo- where war has “shuttered their schools, left them lame and hungry, [and] killed their parents before their eyes” need more than limited access to violent video games to learn peaceful conflict resolution.
Of course, the fact that so many children are robbed of their childhoods does not mean that societies that can afford to let their youth ease into adulthood should not try to regulate their access to speech. Many countries do in fact regulate children’s access to speech, even if they differ over which speech they consider harmful or over the proper methods for regulating the speech. Even the United Nations Convention on the Rights of the Child, which requires signatories to “ensure that the child has access to information and material,” qualifies this obligation by allowing nations to establish “appropriate guidelines for the protection of the child from information and material injurious to his or her well-being.”
This desire to protect children, though well-intentioned, has always been on a collision course with freedom of speech. The collision between these two values has occurred gradually. It not only had to await the development of societies where “childhood” could flourish, but it also had to await the rise of media outlets accessible to children, governments inclined to regulate those outlets, and robust free speech values that called this regulation into question. The tension between free speech and protecting children may have simmered for centuries, but only in recent years, with the advent of pervasive media technologies, has it risen to a boil.
In the United States, the conflict between free speech and protecting children manifests itself in First Amendment jurisprudence. The Supreme Court first wrestled with the issue in the 1950s and 60s. Ginsberg v. New York, the Court’s seminal 1968 decision, upheld the conviction of a New York bookseller who sold “girlie magazines” to minors; these magazines were fully protected speech as to adults but, the Court said, could be denied to minors. In recent years, as lawmakers have aggressively regulated new media technologies, the Court has produced a steady stream of decisions. During the last ten years alone, the Court has issued seven decisions on the constitutionality of child-protection censorship.
The Court’s precedent establishes three overarching principles that re-occur throughout its jurisprudence. First, the Supreme Court acknowledges the government’s power to enact child-protection censorship; in other words, the government may deny minors access to speech that it cannot deny to adults. Second, the Court acknowledges that minors have free speech rights that can occasionally trump the government’s interest in censorship. Third, the Court recognizes that child-protection censorship raises serious constitutional concerns when it incidentally denies adults access to speech.
Beyond these central propositions, however, the constitutionality of child- protection censorship remains largely a muddle. Legislators know they have the power to censor speech but are unsure of the power’s limits. Courts know that this censorship can violate the First Amendment but are unsure of when this occurs. The result is a time-consuming and elaborate dance between legislators and judges as each searches for the undeclared border between constitutional and unconstitutional child- protection censorship.
This confusion is exacerbated by the fact that public pressure for child- protection censorship is on the rise. This growing concern is fueled by advances in technology that have enhanced the graphic quality of sexual and violent images while expanding the means by which these images can be disseminated. These technological advances, combined with the capitalist incentive to exploit the public’s thirst for all things prurient and violent (recall P. T. Barnum’s observation that “No one ever went broke underestimating the taste of the American public” ), have produced an explosion of sexual and violent materials that potentially are available to minors. Consider just a few examples as well as some regulatory responses:
Violent Video Games: Concern over violent video games swelled after the massacres at Columbine High School in Littleton, Colorado and Heath High School in West Paducah, Kentucky. News reports revealed that the teen-age assailants in both instances were avid fans of violent video games such as Doom, Quake, and Mortal Kombat. One of the Columbine assailants even customized his “Doom” game to simulate the crime he eventually committed. Subsequent efforts to limit minors’ access to violent video games have been notably unsuccessful. The Seventh Circuit enjoined an Indianapolis ordinance, noting that children would be ill-prepared for adulthood if raised in an “intellectual bubble” and comparing violent video games to “[c]lassic literature and art.” The Eighth Circuit invalidated a St. Louis ordinance, finding it inconsequential that modern technology “increased viewer control” and commenting that “literature is most successful when it ‘draws the reader into the story . . . [and] makes him identify with the characters.’”
Indecent and Violent Television Programming: Concerns about indecency and violence on television are longstanding and unlikely to disappear. A recent study by the Henry J. Kaiser Family Foundation, for instance, found that one out of seven television shows (excluding newscasts, sports, and children’s shows) “has at least one scene in which intercourse is depicted or strongly implied.” Concern over violent and indecent television programming has generated a wealth of federal legislation. The FCC has long had authority to regulate indecency on broadcast television. Prompted by the revealing Super Bowl half-time show in 2004, Congress recently considered bills to dramatically increase the agency’s sanctioning power under its authority. Congress also has enacted more limited indecency regulations for cable television, including a law designed to protect children from signal “bleeding”-those fleeting moments when inappropriate images on scrambled cable stations escape unscrambled. Federal law also requires television manufacturers to install “V-chips” on newly built televisions so that parents can block inappropriate programming (even though reports suggest that few parents are aware of the technology). These regulations have spawned protracted litigation and several Supreme Court opinions.
Indecency on the Internet: Public concern over unsuitable materials on the Internet has helped to generate a series of federal laws, which have themselves been the subject of numerous legal challenges. Congress’s first major foray into the field was the Communications Decency Act of 1996, which regulated the display and distribution of “indecent” materials to minors. The Supreme Court invalidated this Act because of its vague terms and failure to use the least restrictive means to accomplish the government’s purpose. Congress responded two years later with a more carefully drawn law, the Child Online Protection Act (COPA). Despite this effort, a lower court enjoined the Act’s enforcement, and the Supreme Court affirmed this holding in June 2004. The Supreme Court remanded the case for trial but left a strong impression that the government’s prospects for success were bleak. Congress had slightly more success with the Children’s Internet Protection Act (CIPA), which denies federal funds to public libraries that fail to place filters on their publicly-accessible computers. The Supreme Court upheld this Act against a facial challenge at the end of its 2002 term; however, two Justices in the five-Justice majority invited the law’s opponents to bring a subsequent challenge to the law “as- applied.”
As the above discussion suggests, public concern about minors’ access to inappropriate materials has led to an onslaught of regulatory responses and a multitude of judicial decisions evaluating those responses. This wealth of precedent has added considerable bulk to free speech/child-protection jurisprudence but very little in terms of clarity; a scholar poring over the jurisprudence still could have a hard time articulating what legislators may or may not do to protect minors from speech.
In this Article, I try to guide legislators and judges through the thicket of child-protection censorship. I cut through the masses of precedent, empirical studies, and scholarship to distill the child-protection/free speech conflict into a set of comprehensible questions. I hope that by identifying the questions underlying the conflict, I can draw attention to the key constitutional and policy choices at stake whenever speech is suppressed to protect children. This will help policymakers focus on the real questions behind child-protection censorship: namely, who should decide whether child-protection censorship is constitutional and how should they make this decision? I hope that this conceptual roadmap also will help change the tenor of the child-protection censorship debate, which too often is phrased in extreme terms-either that government censorship to protect children should never be trusted because it is always ill-founded and heavy-handed, or that government censorship to protect children must be given great deference lest our society plunge into moral decay.
The Article addresses a series of questions that together comprise a methodology for analyzing child-protection censorship. Part II begins the analysis by establishing a procedural framework for evaluating child-protection censorship. It asks the fundamental questions of who should decide whether child-protection censorship is constitutional and how the decision on the law’s constitutionality should be made. These questions concern the propriety of judicial review in the context of child-protection censorship and wrestle with the elusive question of how judicial power can be exercised in a restrained and consistent fashion.
Part III explores the substantive question of whether child-protection censorship should ever be constitutional. It begins by showing how child-protection censorship is at odds with the First Amendment’s general prohibition on censorship. It then considers the arguments for exempting child-protection censorship from this prohibition. As will be seen, the primary argument for permitting child-protection censorship is the perception that children are different from adults and that these differences justify governmental intervention to protect children from speech. Part III works through each step in this argument. It also addresses the practical problems of converting a theoretical justification for child-protection censorship into a functional standard for determining when child-protection censorship is constitutional.
Part IV assumes that courts will tolerate at least some forms of child- protection censorship. It wrestles with the sensitive question of how courts can keep child-protection censorship within tolerable limits. Such censorship triggers traditional First Amendment concerns about overbreadth and vagueness, and Part IV considers how courts can address these issues to provide legislators with guidance when they enact new legislation.
November 2015, Vol. 67, No. 6
Liesa L. Richter, Posnerian Hearsay: Slaying the Discretion Dragon
Sapna Kumar, Regulating Digital Trade
W. Keith Robinson, Economic Theory, Divided Infringement, and Enforcing Interactive Patents
Sandra F. Sperino, Retaliation and the Reasonable Person