CHICAGO-KENT

CHICAGO-KENT

LAW REVIEW

VOLUME 79 2004 NUMBER 1

CONTENTS

SYMPOSIUM:

do children have the same first amendment rights as adults?

Symposium Editor

Amitai etzioni

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Are children entitled to the same First Amendment rights as adults? This Article explores the constitutionality of limiting children’s access to objectionable materials assuming that both free speech rights and the protection of children are two core values that, like all other social values, must be balanced. When used to assess specific court cases and public policies, the balancing principle is a helpful guide in determining whether voluntary or incentives-based programs are sufficient to remedy the problems at hand or whether government regulation of free speech is necessary. The Article analyzes five court cases involving Internet filters in libraries, the Children’s Internet Protection Act of 1996, tobacco advertising, and the V-chip. Here the issues regard the consumption, rather than the production, of speech. The argument is not whether a seventeen-year-old student should be prevented from making a political statement, but whether children in kindergarten should be exposed to all the violent and vile materials that flood the Internet, the media, and video games. This Article will show that if protecting children requires some limitations on the First Amendment rights of adults, then regulatory measures are justified only when the harm is substantial and well documented.

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This Article develops a liberal theory of freedom of expression which is sensitive to the interests of children as distinct, vulnerable but developing members of society. I argue that children have, in addition to welfare interests, interests in the development and exercise of basic moral powers. In virtue of such interests, children acquire, well before they become adults, nontrivial rights of free expression. Respecting children’s rights to free expression entails limits on the prerogatives of parents and others to determine the sorts of cultural materials children should be permitted access. Nonetheless children’s rights are importantly different from those of adults. Children can be insulated not only from manifestly harmful cultural materials but also from some materials that are age inappropriate (but not harmful) and from some materials that parents find offensive. The author explains how considerations of parental authority, children’s welfare, children’s rights of free expression, and adults’ rights of free expression can be coherently integrated without circumscribing the legitimate rights of adults or exposing children to objectionable cultural materials. The liberal theory the author defends provides an alternative to Amitai Etzioni’s communitarian analysis of the potential threats to children posed by free speech.

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This Article endorses the conclusion of Etzioni’s article that the First Amendment right of free speech should not trump the interests of children. However the picture is more complicated once we recognize that parents have a “basic” right to bring up their children as they see fit that may conflict with the state’s duty to protect children in its jurisdiction.

Moreover there is an important difference between protecting children now from harms and safeguarding the interests of the adults they will grow into. Society has an interest in protecting children based upon its fundamental interest in ensuring the conditions of its own future existence.

The question of whether or not children do have rights is properly thought of in terms of the capacities children do or do not possess. The right to free speech is justified foundationally and not instrumentally, as realizing a basic human interest in being heard as the source of beliefs, desires, and values. Children lack the capacities to be regarded as sources of beliefs, desires, and values. Hence they do not have a right to free speech, although they do have an interest in their views on matters affecting them being heard and taken account of.

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In this Article, the author suggests that certain speech-reducing regulations will, in fact, be speech-enhancing for children. This is because children are vulnerable to far greater censorship at the hands of their parents than at the hands of Internet regulators. Regulations that inspire parents to relax their grip on their children’s access to information are likely to produce significant net speech gains for children. Viewed this way, regulations designed to protect children can be conceived as pitting the speech interests of adults against the speech interests of children. The Article suggests a number of reasons we might value the children’s speech gain over the adult’s speech loss, particularly in the context of Internet speech.

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In this Article, Prof. Nunziato scrutinizes Congress’s recent efforts to regulate access to sexually-themed Internet speech. The first such effort, embodied in the Communications Decency Act, failed to take into account the Supreme Court’s carefully-honed obscenity and obscenity-for-minors jurisprudence. The second, embodied in the Child Online Protection Act, attended carefully to Supreme Court precedent, but failed to account for the geographic variability in definitions of obscene speech. Finally, the recently-enacted Children’s Internet Protection Act apparently remedies the constitutional deficiencies identified in these two prior legislative efforts, but runs the risk of being implemented in a manner that fails to protect either adults’ or minors’ right to access protected expression. Although CIPA recently withstood a facial attack on its constitutionality, it is likely that this statute will confront as-applied challenges. Prof. Nunziato analyzes the technology and the First Amendment doctrines at issue in CIPA’s implementation, and sets forth recommendations as to how libraries can implement CIPA in a manner that protects both adults’ and minors’ free speech rights.

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The Internet crosses physical borders, and carries with it both its promises and its harms to many different countries and societies. These countries thus share the same technology, but they do not necessarily share the same set of values or legal system. This Article compares the legal response in the United States and in Europe to one important issue: the exposure of children to certain materials, which are deemed harmful to them but not harmful to adults.

This US-European comparison, in which the experience in the United Kingdom serves as a leading example, illustrates the traits of various kinds of regulation of the new media: public ordering (direct and indirect), private ordering, and ordering by code, i.e., by technological means. The authors examine the various kinds of regulation and their constitutional meaning.

The US opted mostly for a direct legal attack on the material which is harmful to children, an approach which thus far failed the judicial test, due to the limitations it imposes on freedom of speech of adults. While the European framework allows greater balancing between expression rights and competing interests, the European response has not been to follow the direct restrictions attempted in the US. Instead, accepting the practical difficulties of enforcing direct restrictions, the emerging legal response in European countries has been a market-based solution, guided by a legal framework that fosters self-regulation. The Article considers the reasons for adopting the approach of self-regulation and the impact that such methods of control have on freedom of expression. In particular, the Article examines the relationship of such controls with the communitarian approach advocated by Professor Etzioni.

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Etzioni’s argument for censorship of minors ignores the fundamental problem with Internet filters, misstates the results of media-effects research, and uses emotional terms like “protection” and “harm” to mask moral judgments about what is appropriate for youth.

Given the size and constantly changing character of the Internet, filters necessarily rely on key words and phrases. As a result, thousands of valuable Web pages are mistakenly blocked by filters, even at their narrowest settings. The problem is inherent in the system.

Most media-effects studies do not show a causal link between violent content and violent (or “aggressive”) behavior. The studies that claim positive results often involve manipulation of the numbers or use dubious proxies for aggression (such as popping balloons). Media violence actually has a variety of effects. Scholars say that for many youths, it provides a harmless outlet for aggression.

Etzioni evades the task of defining what he thinks should be censored. But this challenge cannot be avoided. Because of the difficulty of definition, restrictions are inevitably vague and overbroad. They also ignore minors’ free expression rights, which expand as they mature. Noncensorial approaches—media literacy, sexuality education, and funding of alternative, nonprofit media—are in any event more effective than censorship in addressing concerns about adverse media effects.

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This Article addresses the two sorts of problems raised by Professor Etzioni, while also responding to the earlier articles in this Symposium. With regard to the spillover effect, the author argues that there are ways to limit the effect on adults of restrictions designed to protect children, even on the Internet. Furthermore, some spillover effect is allowed and may leave open the possibility of protecting children from tobacco or alcohol advertisements. The Article also addresses areas in which material has been seen as protected even for children. While agreeing that depictions of violence pose an important problem, the Article also addresses hate speech delivered to child audiences. The Article argues for a two-tiered First Amendment that would allow the state to protect children from damaging material, unless their parents wish to provide it, while leaving open adult-to-adult communication.

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Compared to most adults, children are dependent and vulnerable and therefore require special protection. Efforts to safeguard their well-being often collide with one or more of the liberty guarantees of the First Amendment. Professor Etzioni fears that current jurisprudence has tipped the balance too far towards individual liberty, making it difficult to extend children the legal protection they need. Drawing on a theoretical account of constitutionalism as well as existing case law, the author argues that mainstream jurisprudence is up to the task of balancing the well-being of children against the liberty of adults. The Supreme Court’s recent decision in United States v. American Library Association, Inc., upholding the Children’s Internet Protection Act, broke little new ground but rather applied existing constitutional standards to reach a sound result.

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In the summer of 1999, West Nile Virus, a mosquito-borne illness, appeared in the eastern United States and has since worked its way across the country. Thousands have been infected, and hundreds have died from the virus. Communities, struggling to protect their residents, have often been forced to employ widespread pesticide spraying to stop the virus’ spread. Citizens and environmental groups, however, have expressed concern that pesticide spraying is damaging to the environment and contend that the law has been broken. They argue that when these pesticides are deposited onto water bodies, without first obtaining a permit, there is a violation of the Clean Water Act (“CWA”). Unfortunately, uncertain interpretation of the CWA’s applicability by the Environmental Protection Agency (“EPA”) and the federal courts has left this issue unresolved. This Note suggests that, while it is possible that a permit will be required under the CWA for pesticide spraying, because the permitting process is too long and too expensive, communities should look for additional solutions for the short term. Specifically, the Note suggests that communities employ a stakeholder approach, advocated by the EPA in other forums, to develop solutions that will appease concerned citizens while ensuring communities are able to continue the necessary work of protecting the public health.