Article Title
Anything Goes: Examining the State's Interest in Protecting Children from Controversial Speech
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 be- cause 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."
One case stemming from efforts to shield children from controversial speech was recently argued before the Supreme Court and a second is likely to reach the Court during the next term: Playboy Entertainment Group v. United States ("Playboy II"), involving control of transmissions from subscription adult cable channels so that they do not inadvertently reach non-subscribers, and ACLU v. Reno ("ACLU IT), involving the Child Online Protection Act ("COPA"), which limits commercial computer communications deemed "harmful to minors." Over the last decade, the Supreme Court has ruled on three other cases involving the constitutionality of federal efforts to regulate speech in order to shelter children from content: Sable Communications, Inc. v. FCC, Denver Area Educational Telecommunications Consortium, Inc. v. FCC, and Reno v. ACLU ("ACLU1').' In each instance, the Court rejected the state's argument that the goal of shielding children justified significant intrusions on constitutionally protected speech; in each instance, the Supreme Court overturned all or part of the statute at issue. The holding in each of the cases in the trilogy reiterated the Supreme Court's express statement in Interstate Circuit v. City of Dallas that the "salutary purpose of protecting children" does not insulate government action from constitutional scrutiny. But remarkably, in each of these three cases, the Supreme Court ignored its own dictates by failing to analyze the state's asserted compelling interest. Instead, the Court readily accepted the asserted interest in passing, but found that Congress had exceeded the boundaries of the Speech Clause in promulgating the specific regulation.' Legal questions about the regulation of speech to shield children are likely to recur with increasing frequency, judging from the docket of pending legislation and statutes not yet tested in the courts."