Children and the First Amendment

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CHILDREN AND THE FIRST AMENDMENT

Because many conceptions of the first amendment's protection of speech and press are premised on a model of human rationality and human choice and because traditional views about children take them to be incapable of having the rationality and exercising the capacity of choice assumed for adults, issues about the free speech rights of children have always been problematic. Indeed, the need to protect children from harmful ideas they may be incapable of evaluating has been explicitly a part of the free speech tradition since john stuart mill'sOn Liberty.

Treating minors as different for free speech purposes has been a recurring feature of obscenity law. Although the Supreme Court reaffirmed in Pinkus v. United States (1978) that it is impermissible to judge the obscenity of material directed primarily to adults on the basis of its possible effect on children, the Court has also held in Ginsberg v. New York (1968) that where sexually explicit material is directed at juvenile readers or viewers it is permissible to apply the test for obscenity in light of a juvenile rather than an adult audience. In addition, the Court in new york v. ferber (1982) relied on the importance of protecting juvenile performers in allowing child pornography prosecution for the distribution of material not legally obscene, although it is clear that analogous justifications for restrictions on publications remain impermissible with respect to adult participants. Still, the Court has been sensitive to the likely overuse of children-protecting rationales for restricting speech, and although in federal communications commission v. pacifica foundation (1978) it relied on a protection of children rationale in upholding restrictions on the times during which sexually explicit or offensive radio programs might be broadcast, in Sable Communications of California, Inc. v. FCC (1989) it unanimously struck down a federal law restricting "indecent" telephone communications because of an insufficient showing that a restriction of this magnitude was necessary to protect children. Sable thus continued a tradition going back at least to butler v. michigan (1957), in which Justice felix frankfurter made clear that a law reducing the adult population to reading only what was fit for children would be an impermissible encroachment on First Amendment freedoms.

More commonly, the issue has arisen in the context of restrictions on speech in the public schools. Although it is so obvious as never to have generated a Supreme Court case that children as speakers in the public forum or other open environment have the same free speech rights as adults, the question is more complicated with reference to speech within the confines of the public schools. In upholding a student's right to wear a protest armband even in class, the Supreme Court in tinker v. des moines independent community school district (1969) observed that "[n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" and proceeded to hold content-based restrictions on student speech in the schools invalid unless supported by evidence of actual or potential "disturbance," "disruption," or "disorder."

Both the language in Tinker and its "disturbance" standard proved difficult to square, however, with the fact that much of the mission of the schools involves controls on communication, of which the most obvious is the hardly unconstitutional practice of rewarding certain answers and penalizing others. As a result, subsequent cases, themselves frequently criticized as too much of a departure from Tinker and too easy an acquiescence to teacher or administrator authority, have tempered the Tinker approach. In bethel school district v. fraser (1986) the Court upheld disciplinary action against a high-school student who had made a sexually suggestive, but plainly not legally obscene, speech in a school assembly, and in hazelwood school district v. kuhlmeier (1988), the Court allowed the school to exercise content-based control over a school-sponsored student newspaper produced on school property with school resources, the writing and editing of which was part of a journalism course offered by the school. More significantly, Hazelwood explicitly substituted a seemingly more lenient "reasonableness" standard for the Tinker "disturbance" standard, although it remains too early to assess the actual import of the new approach. It does seem clear that the recent cases represent a willingness to defer to decisions of school authorities more than has been the case in the past and a consequent willingness to allow school authorities at the primary and secondary level to choose to have an "indoctrination" rather than a "market place of ideas" model as the major purpose of primary and secondary education. Thus, the recent trend will likely result in little judicial review of content-based restrictions on student speech within the primary and secondary schools. But the Court's unwillingness to overrule Tinker, combined with decisions like board of education v. pico (1982), dealing (unclearly) with political censorship of school libraries, indicates that judicial intervention remains appropriate where the content-based restrictions are excessively viewpoint based or where they stem not from the decisions of primary professionals such as teachers and principals, but rather from the selective involvement of more political and less professional elected officials.

Frederick Schauer
(1992)