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Vanderbilt Law Review

First Page

427

Abstract

Protecting children from contamination by speech has become the focus of national attention. The content of the protected speech that the state seeks to regulate is as varied as the form of communications targeted, including the allegedly indecent, sacrilegious, and violent in media ranging from books to the Internet. Echoing similar crusades to protect children from virtually every new form of entertainment over the last century, contemporary regulatory efforts to protect children reflect the unique legal status of children and the fragility of constitutional liberties where their vulnerabilities are invoked. But content-based restrictions on speech--even in the name of protecting young people--presumptively violate the First Amendment, which mandates "above all else.., that government has no power to restrict expression because of its message, its ideas, its subject matter or its content."'

Strict scrutiny under the Speech Clause requires the government to demonstrate a compelling interest in regulating speech based on its content and to show that a real harm exists which the restriction on speech will redress. Confronted with the incantation that the state aims to safeguard children, courts at every level, including the Supreme Court, have regularly failed to scrutinize the interest alleged by the government. This lack of analysis is all the more striking because the speech at issue in this Article is protected under the Constitution. It is neither legally obscene nor used in the service of criminal acts against children. Both of these categories of speech are unprotected, and are subject to criminal prosecution under pertinent statutes.

Although many parents and other adults might wish it were otherwise, the Supreme Court has recognized that as long as controversial speech is available, some "enterprising youngsters" will find it.' The Supreme Court has conceded that no "fail-safe" methods can block the most determined teen, especially since government regulations based on content must be narrowly tailored." The Supreme Court has long held as inviolable the principle that even the desire to protect youth will not allow the state to "reduce the adult population.., to reading only what is fit for children." Regardless of the strength of the government's interest in protecting children, the Court has insisted that "[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox."

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