Let me add as a footnote, if I may, as a Jew, I very much regret you drawing the Holocaust into this, Mr. Berman. [The prepared statement of Mr. Etzioni follows:] PREPARED STATEMENT OF AMITAI ETZIONI ON PROTECTING CHILDREN FROM SPEECH AMITAI ETZIONI* INTRODUCTION When freedom of speech comes into conflict with the protection of children, how should this conflict be resolved? What principles should guide such deliberations? Can one rely on parents and educators (and more generally on voluntary means) to protect children from harmful cultural materials (such as Internet pornography and violent movies) or is government intervention necessary? What difference does historical context make for the issue at hand? Are all minors to be treated the same? What is the scope of the First Amendment rights of children in the first place? These are the questions here explored. The approach here differs from two polar approaches that can be used to position it. According to a key civil libertarian position, materials that are said to harm children actually do not have such an effect, and even if such harm did exist, adults should not be reduced to reading only what is suitable for children. Hence, as long as speech qualifies as protected for adults, it should be allowed. In short, the First Amendment should trump other considerations.2 University Professor, George Washington University; Director of the Institute for Communitarian Policy Studies and editor of the quarterly journal The Responsive Community; author of MY BROTHER'S KEEPER: A MEMOIR AND A MESSAGE (2003); former president of the American Sociological Association and Senior White House Advisor duing the Carter Administration. I am indebted to Marjorie Heins and Nancy Willard for several corrective comments on a previous draft of this Article, and especially to Eugene Volokh for very encompassing and thorough criticisms. I am greatly indebted to Mackenzie Baris for extensive research assistance and editorial suggestions, as well as to Elizabeth Jarvis, Deirdre Mead, and Amanda Roberts. 1. See Combined Proposed Findings of Fact of the ACLU and ALA Plaintiffs, ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) (Nos. 96-963, 96-1458), available at http://archive.aclu.org/issues/cyber/trial/finding.htm. 2. Civil libertarians find very little speech they would agree to bar. For instance, they hold that using children to make child pornography is indeed a crime because children are abused, but once a tape is made, it should not be suppressed since the children were already harmed and suppressing the tape would create a precedent for limiting speech. Thus, when the Supreme Court upheld a New York state statute making the sale of child pornography illegal, the ACLU's Jack Novik denounced child pornography as “ugly, vicious stuff” that should be fought In contrast, many social conservatives argue that pornography undermines the moral culture and corrupts character. Hence, such material should be barred, the way child pornography is, in order to protect children and adults alike-although additional protection of children is surely welcome. In short, according to this approach, protecting people and the community from harmful cultural products takes precedent over free speech when there is a conflict. Neither of these positions focuses on the difference between children and adults. To put it strongly, quite a few civil libertarians lean towards treating children like adults, and many social conservatives focus on the child in all of us, on our vulnerabilities. Both focus on pornography and each, for its own reasons, is less mindful of the effects of exposure to violence.3 The position developed here builds on extensive social science findings that there are cultural materials harmful to childrenalthough we shall see that the greatest harm is not caused by the materials on which recent attempts to protect children have focused. I suggest the starting point of such deliberations should be an agreement that there be no a priori assumptions that either free speech or protection of children trumps the other, and that there are systematic ways to work out the relationship between these two core values." I realize that to discuss the First Amendment in balance with something else is not a concept readily acceptable to those who treat free speech as the most primary right and who, while recognizing that it must be squared occasionally with other values, put the onus of proof completely on those making claims against it. My approach treats free speech as one of several values that must be balanced. Moreover, I hold that the balance between these two core values, like all others, is affected by historical context, in which excessive leanings in favor of one value (and neglecting the other) need to be corrected in the following time period if a reasonable balance is to be preserved. This through stronger laws against exploitation of minors, but denounced the Court's decision, saying, "Government intrusion into freedom of speech is expanded." Impact of Court's Child Pornography Ruling Assessed, CHRISTIAN SCI. MONITOR, July 7, 1982, at 3. 3. See, e.g., DAVID BURT, DANGEROUS ACCESS, 2000 EDITION: UNCOVERING INTERNET PORNOGRAPHY IN AMERICA'S LIBRARIES 2-3 (2000). 4. This idea is further developed in AMITAI ETZIONI, THE NEW GOLDEN RULE: COMMUNITY AND MORALITY IN A DEMOCRATIC SOCIETY (1996) [hereinafter THE NEW GOLDEN RULE}. 5. The choice of the term "value" rather than “right” is deliberate here; rights imply things much less given to balancing with other considerations than values, for which one recognizes possible conflicts that will have to be worked out. 2004] ON PROTECTING CHILDREN FROM SPEECH principle guides us in exploring whether one can rely on voluntary means to treat the issue at hand or whether government intervention is needed. And I not only treat minors as having fundamentally different rights from adults, but also take into account differences among minors of various ages. It should be noted that the discussion here focuses on the right to “consume” speech rather than to produce it. The main question is not whether children should be entitled to make movies, produce CDs, and so on, but whether their access to the harmful content found in some cultural materials should be limited. 5 The discussion proceeds by providing some background (Part I), and then extensively examining five case studies to provide key examples for explorations of the issues at hand (Part II). Readers familiar with the cases or less interested in the fine print may wish to turn to the discussion of the lessons drawn from these cases regarding the proper relationship between speech and the protection of children (Part III). In this section, I pay special attention to the merit of separating the access children have to cultural materials from the access adults have-or if this cannot be fully accomplished, the possibility of minimizing the extent to which limitations on children “spill over” onto adult access-rather than dealing with "all patrons" as if they were of one kind. Also, I take it for granted that commercial speech can more readily be limited than other speech, and that while voluntary means of curbing access are superior to semi-voluntary ones, there might be room for some regulation. This section is followed by an examination of the evidence of the scope and nature of the harm some cultural materials inflict on children, with special attention to the important differences in the effects of pornographic and violent content on children (Part IV). The need to correct the delicate balance between speech and the protection of children is viewed in the historical context in which it occurs (Part V), followed by an examination of differences among children according to their ages (Part VI). The Article closes by briefly reviewing the implications of the conclusions drawn up to this point for political theory (Part VII) and discussing whether the standards for limiting speech could be communal or must be national, and the implications of this factor for the protection of children (Part VIII). CHICAGO-KENT LAW REVIEW I. BACKGROUND: CONTENT CONTROLS FAIL THE TEST [Vol 79:3 Congress has made several attempts to limit the access children have to materials that it considers harmful to them." The constitutional challenges to these laws reveal a major flaw in these approaches and explain the current focus of other attempts to deal with the same problem. The issue has not been the need or legitimacy of taking special measures to protect children. In several cases, the Supreme Court has affirmed that the government has a compelling public interest in protecting children." Ginsberg v. New York confirmed that "the State has an interest 'to protect the welfare of children' and to see that they are 'safeguarded from abuses."" Moreover, it specifically recognized that some cultural products can cause harm to children, and that children are entitled to protection from such materials. The decision in Ginsberg, which upheld a New York state statute prohibiting the sale of pornographic magazines to minors under the age of seventeen, relied on two basic principles regarding children: that children should not be allowed the same access to certain types of materials as adults, and that the state is entitled to pass laws aiding parents in carrying out their duties. The Court ruled that though the materials in question were legal for adults, the Constitution permits the state to "accord minors under 17 a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see."10 Furthermore, the Court stated that constitutional interpretation has consistently recognized that the The Court later reaffirmed this position in FCC v. Pacifica Foundation,12 which upheld an FCC ruling restricting the broadcast of 6. See, eg., Communications Decency Act of 1996, Pub. L. No. 104-104, 110 Stat. 133 (codified as amended at 47 U.S.C. § 223 (2000)); Child Online Protection Act, Pub. L. No. 105277, 112 Stat. 2681-736 (1998) (codified as amended at 47 U.S.C. § 231 (2000)); Children's Internet Protection Act, Pub. L. No. 106-554, 114 Stat. 2763A-335 (2001) (codified as amended at 20 U.S.C. § 9134 and 47 U.S.C. § 254(h) (2000)).. 7. Prince v. Massachusetts, 321 U.S. 158, 165 (1944) (upholding the "interests of society to protect the welfare of children, and the state's assertion of authority to that end”). 8. 390 U.S. 629, 640 (1968) (quoting Prince, 321 U.S. at 165). 9. Id. at 637, 639. 10. Id. at 637. 11. Id. at 639. 12. 438 U.S. 726 (1978). 2004] ON PROTECTING CHILDREN FROM SPEECH indecent speech to times of day when children were unlikely to be listening or watching unsupervised.13 The Court reasoned that children may not be able to protect themselves from speech which, The Court thus affirmed that "society may prevent the general dissemination of such speech to children, leaving to parents the decision as to what speech of this kind their children shall hear and repeat.”15 The matter then became how to separate speech from which children should be protected from other speech. As in other attempts to separate two kinds of speech (such as "fighting words”1), this has so far proven next to impossible. When Congress took up the challenge of protecting children on the Internet, it first passed legislation attempting to shield children by controlling the content of the materials they could access. The most notable attempts, the Communications Decency Act of 199617 ("CDA") and the Child Online Protection Act of 199818 ("COPA"), focused on restricting the type of content that could be posted on the Internet. These attempts largely failed when they were challenged in the courts. The Supreme Court ruled that the CDA's prohibitions on "indecent transmission" and "patently offensive display" violated freedom of speech as protected by the First Amendment.19 Though it affirmed the compelling interest of the government in "protecting minors from potentially harmful materials" on the Internet," the Court found that "the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of 'narrow tailoring' that will save an otherwise patently invalid unconstitutional provision." The Court ruled that the scope of the legisla 13. Id. at 733. 14. Id. at 757-58. 15. Id. at 758. 16. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). For a discussion of the fighting words doctrine and its application, see Note, The Demise of the Chaplinsky Fighting Words Doctrine: An Argument for its Interment, 106 HARV. L. REV. 1129 (1993); Melody L. Hurdle, Recent Development, R.A.V. v. City of St. Paul: The Continuing Confusion of the Fighting Words Doctrine, 47 VAND. L. REV. 1143 (1994); and Michael J. Mannheimer, Note, The Fighting Words Doctrine, 93 COLUM. L. REV. 1527 (1993). 17. Pub. L. No. 104-104, 110 Stat. 133 (1996). 19. Reno v. ACLU, 521 U.S. 844, 859, 882 (1997). 20. Id. at 871. 21. Id. at 882. |