Rejuvenating Free Expression An Argument for Minors' First Amendment Rights

...Beyond the heated rhetoric, however, the justification for "protecting" the young remains the same: otherwise they will pick up bad ideas about sexuality, promiscuity, or violence, before they are mature enough to evaluate and (presumably) reject them...

...One discouraging clue came three years later...

...Still, the child protectors argue, the need to protect minors from the harms of sexual speech outweighs free-expression principles...

...What effect does any particular idea, image, or story have on any particular age group or person...

...Is Schindler's List gratuitously violent—or not violent enough, given the enormity of the horrors it depicts...

...Justice William Brennan explained in this case, Ginsberg v. New York, that because youngsters have "restricted" First Amendment rights, the girlie magazines could be considered obscene for them, though not for adults...

...Sexuality is now recognized as an important cultural and political subject...

...Space here does not permit dissection of these (in fact, quite dubious) studies, but it is worth noting that the theory of imitation, or "social learning," is just one among many psychological explanations for how art and entertainment affect human psyches...

...and therefore it is most important that the tales which the young first hear should be models of virtuous thoughts...

...The potential for abuse, and for overbroad restrictions based upon censors' personal reactions to violent, sexual, or "offensive" content, is immense...

...What was the nature of this "more lasting negative effect...

...Whether they rely on "keyword" identification, "third party" subject-matter classifications (nudity, sex, homosexuality, and so on), or "self-rating," these labeling schemes do not distinguish between art, political discussion, sex information, and commercial "pornography...

...John Paul Stevens wrote an opinion in Pacifica emphasizing that broadcasting should be regulated more extensively than other media because it "invades" the home and is "uniquely accessible to children, even those too young to read...

...The same First Amendment that protects nonsexual ideas should protect sexual ones...

...and it is arguably an overly simplistic and reductionist one...

...The unanswerable question is precisely how...

...FIVE SUPREME COURT justices agreed...

...In 1995, a Missouri teacher was fired for allowing her students to use profanity in their creative writing assignments, and although a federal jury awarded her damages, an appeals court reversed the verdict...

...The Supreme Court has in fact spoken eloquently—if not recently—of the imporDISSENT / Summer 1999 45 tance of respecting youngsters' intellectual freedom and curiosity...

...But because we cannot know what specific works are likely to have these bad effects on any particular individual or group, the conclusion is irresistible that the protectionist argument is less about preventing real-world harm than about symbolism—not only for DworkinMacKinnonites, but for child advocates who are concerned about youth violence or teen pregnancy, and for politicians who simply want to appear to be "doing something" to fix social problems about which they are in fact doing nothing...

...The decision struck down a Jacksonville, Florida, ordinance designed to shield youths (and offended adults) from glances of human nudity on drive-in movie screens...

...Internet rating-and-blocking systems generally use the same approach...

...That an American court should rely upon this pedagogical assertion was remarkable...

...The difficulty of distinguishing "good" from "bad" messages in art or literature, or "quality" from crude or lowbrow sexual content, explains why the recently launched television rating system, forced by Congress on the television industry in 1996, eschews any effort to make such distinctions, and instead simply contains four subject matter categories —sex, violence, suggestive language, and coarse dialogue...

...This is surely true for little ones, but less so for older children and teenagers...

...Likewise, safer sex films that actually deal with the realities of putting on a condom— not to mention the fun one might have in the process—are labeled pornographic, as are the Starr report, the photographs of Robert Mapplethorpe, daytime talk shows, and other cultural outpourings too numerous to mention...

...The myriad problems with Internet rating and blocking—misleadingly promoted as "parental empowerment"—are by now common knowledge...

...Information about condoms or other means of avoiding pregnancy or HIV is forbidden...

...if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes...

...COPA was invalidated in February 1999 by a Philadelphia judge who nevertheless expressed "personal regret" that his decision "will delay once again the careful protection of our children...

...She has been counsel in numerous First Amendment cases, including Reno v. ACLU...

...in 1957, had also recognized that sex is "a great and mysterious motive force in human life," a legitimate subject of inquiry and literature...

...Finally, courts, pundits, and policy makers should reconsider the long-accepted but mistaken assumption that sexually explicit or even just vulgar speech merits little constitutional protection, at least in the context of minors...

...MARJORIE HEINS is an Open Society Institute Individual Project Fellow...

...In a 1975 case, the Court tried to reconcile this recognition in Roth of the value of sexual speech with the lingering Puritanism of Ginsberg and the First Amendment-friendly stand of Tinker...

...And one fundamental tenet of the First Amendment is that government cannot aim at the suppression of ideas it considers dangerous...

...Finally, censorship itself can harm youngsters—by denying them respect and a sense of autonomy, by instilling sexual guilt and shame, and even by threatening their physical health, as the informationdenying rigidity of the federal abstinence-only program illustrates...

...Even Roger Shattuck, who fulminates in his book Forbidden Knowledge against sexual violence in literature, recognizes ancient differences between Plato and Aristotle regarding "crime and evil in art," and acknowledges that art has the power to purge as well as intensify emotions...

...Particularly given the efficacy of education in media literacy and conflict resolution as counters to pernicious ideas gleaned from television, video games, or real life models, there ought to be focused demonstrations of harm caused by specific works to overcome the constitutional presumption of free-speech protection for older teenagers...

...masturbation is no longer thought to produce idiocy and death...

...Ironically, international law recognizes the free-expression rights of youth in more specific terms than the U.S...

...He emphasized that public schools have broad authority to inculcate civic values, and strongly implied that this could include censoring books because of vulgar or sexual content...

...The Supreme Court's 1997 decision in Reno invalidated the CDA on the simpler ground, but did also note the many non-harmful sexual ideas that could be suppressed under the indecency standard...

...Meanwhile, as alternatives or supplements to criminal Internet bans, the White House, anti-pornography groups, and online corporations began to promote the rapidly proliferating array of rating-and-filtering software programs...

...The answer varies with every individual and depends upon a multitude of factors, from genetic predisposition to family and community environment...

...Lost in the ideological battle was any attention to differences in age, maturity, upbringing, or education, to older minors' healthy curiosity about social mores, or to their First Amendment right to hear, and enjoy, what George Carlin had to say...

...AT THE VERY least, then, rejuvenating minors' First Amendment rights should involve appreciation for their gradual maturing...

...Thoughtful protectionists will acknowledge these problems of overgeneralization and unpredictability, but still maintain that we have to start somewhere...

...In 1998, Congress passed the Child Online Protection Act (COPA), substituting a Ginsberg "harmful to minors" or "variable obscenity" ban for the broader "indecency" proscription struck down in Reno...

...complaints about nudity, sexual content, and violence seemed to obliterate any appreciation by the school board of the film's historical and aesthetic value...

...In addition to overall protection for free expression in article 10 of the European Convention on Human Rights, there is a 1989 UN Convention on the Rights of the Child that protects youngsters' right to "seek, receive and impart information and ideas of all kinds," and a Charter of Rights of the Child, passed by the European Parliament in 1992, that specifically establishes a right to receive sex education, including "information on birth control methods and the prevention of sexually transmitted diseases...

...This meant almost all Internet communications (with the exception, ironically, of commercial porn sites that charge for entry...

...even high school drama students are fantastically described as simpletons who cannot distinguish the "allegorical" from the "literal...

...Where this on-the-one-hand/ontheother-hand approach would leave youngsters in future cases was not clear...

...My brief here for recognizing the power of catharsis, even for young people, is not intended to deny the obvious fact that the media do influence attitudes—of adults and children alike...

...schools and libraries, their only likely venues for Internet access, should not be sanitized in a way that only exacerbates poor children's educational disadvantage when compared to middle-class youth...

...The precedents begin in 1943 with a famous opinion recognizing the right of Jehovah's Witness children not to be forced to salute the flag...

...anything that he receives into his mind at that age is likely to become indelible and unalterable...

...Teenagers, moreover, need free access to information and ideas, precisely because they are in the process of identity formation...

...She proposes a graduated framework of minors' "rights and responsibilities" in areas ranging from sexual consent to film attendance...

...A teacher in Colorado lost his job the following year for DISSENT / Summer 1999 43 showing his advanced history class Bernardo Bertolucci's 1900...

...Cinemaphiles can debate the point, but the fact is that school boards have banned this highly educational film from curricular use because of its "R" rating for violence and nudity...

...This should apply to youngsters, too...

...DISSENT / Summer 1999 49...

...Their point was to challenge the longstanding assumption that "indecency" harms minors, not just win the Reno case on the more obvious theory that by essentially banning all indecent speech online, Congress had unconstitutionally reduced the adult population to reading "only what is fit for children...

...Any attempt at rating, blocking, or prohibiting expression that contains violence, vulgarity, bigotry, or sex will collide with this fundamental unpredictability about the effects of art...

...They are not sufficiently developed or socialized to understand and resist the perils of bad speech...

...Harm was a question not of psychological trauma or antisocial conduct but of sensibility, of the adult world's stating its disapproval of language that most children undoubtedly knew...

...The CDA made it a federal crime to display "patently offensive" online sexual content "in a manner available to" anyone under eighteen...

...Even for younger children, consideration should be given to the notion of preparing them for adulthood through education and exposure to ideas, rather than creation of forbidden thought zones and "closed circuit" indoctrination...

...In the frenzy of protectionist enthusiasm, these differences have frequently been overlooked...

...The plaintiffs in Reno v. ACLU, the lawsuit challenging the CDA, wanted to communicate potentially offensive or indecent material to teenagers on subjects ranging from contraception and safer sex to human rights abuses, prison rape, feminism, and censorship itself...

...Ratings, no matter how elaborately calibrated the scale of different categories for sex, nudity, violence, or other "inappropriate" content, reduce the idiosyncratic and highly contextualized process of human communication to a set of insidiously simplistic symbols...

...Aristotle's theory of catharsis—positing that art purges powerful, sometimes destructive, emotions and actually makes us less likely to engage in anti-social conduct—still has its adherents...

...This would mean that vague government concerns about "ethical and moral development," as in the Ginsberg case, would not be a sufficient basis for censorship: as with adults, the state would have to prove the need for restrictions...

...The FCC, which claimed authority to censor broadcast "indecency" (its previous targets had included an interview with the Grateful Dead's Jerry Garcia and call-in discussions of oral sex on early-1970s "topless radio"), warned New York's Pacifica station that its broadcast of Carlin's monologue at 2 p.m...

...Even in the heady days of the flag salute and black armband cases, moreover, the Supreme Court took a constricted view of minors' rights to sexual speech...

...The European Parliament, concerned about material that is "harmful" but not illegal, enthusiastically supports rating and blocking of Internet sites—despite its recognition of widely differing cultural attitudes toward minors and sexuality among its member states...

...What I am suggesting, though, is that the much-maligned First Amendment, and its underlying principle of intellectual freedom, be part of the debate...

...The court cited Plato's Republic in support of its ruling that teachers have no First Amendment rights in connection with school curriculum: A young person cannot judge what is allegorical and what is literal...

...Protectionist Claims It is time to take a hard look at what the concept of protecting minors from harmful speech really means, before the censorship juggernaut goes any further...

...accordingly, school boards may not remove books from libraries for "narrowly partisan or political" reasons...

...Indeed, psychologists have found little overall difference between adults' and older minors' ability to make coherent decisions based upon their processing of relevant information...

...Then, too, there are the more tangible dangers of sexually transmitted diseases and unplanned pregnancies where contraceptive and safer-sex information is forbidden...

...Because we can't transform all parents into paragons of virtue or provide all youngsters with wholesome social environments, the least we can do is censor violence on television, porn on the Internet, heavy metal music, Marilyn Manson T-shirts, Huckleberry Finn, lascivious condom ads, or whatever else is thought to contribute to bad attitudes...

...The same paternalism is evident throughout the political landscape—in enthusiasm for television v-chips, Internet rating and filtering schemes, "explicit lyrics" labels on popular music, and computer "indecency" laws...

...Even sociallearning theorists acknowledge that the media are only one among many influences on children's attitudes and behavior, and far from the most important...

...But the Supreme Court's first major obscenity case, Roth v. U.S...

...As critic Mark Oppenheimer wrote recently, explaining the popularity of the much-censored Judy Blume, her books dramatizing childhood and adolescent problems are cathartic in their appeal to youngsters who have "outgrown the fantastic" and thirst for stories about real life...

...Given the heat of the harm-to-minors issue, full constitutional protection, even for teenagers, may not be a readily attainable goal...

...The assumption that minors are harmed by reading, watching movies, or surfing the Internet is, of course, usually framed in terms of "gratuitous violence" or "pornography," not works by Bernardo Bertolucci or Toni Morrison...

...Court Rulings I have referred to minors' First Amendment rights, but what is the evidence of their existence...

...they are not merely, as the Supreme Court said in 1969, "closed circuit recipients of only that which the State chooses to communicate...

...From Maya Angelou's I Know Why the Caged Bird Sings and Toni Morrison's Beloved to Gabriel Garcia Marquez's One Hundred Years of Solitude and Steven Spielberg's Schindler's List, no work that addresses the human condition has been exempt from attack...

...Bruno Bettelheim's classic study, The Uses of Enchantment, observed the cathartic function of horrific fairy tales in children's psychological development...

...Europeans have sometimes paid closer attention to age and maturity levels...

...One of the sad ironies of the current epidemic of school censorship is that, while youngsters are inundated with libidinous but relatively thoughtless mass media entertainment, school boards across America are depriving them of serious, thoughtful literature and discussion about sexuality and other controversial subjects...

...Two years later, a federal appeals court rejected a First Amendment academic freedom claim by a high school drama teacher who had coached her advanced acting class in an award-winning performance of a play called Independence...

...He did not explain why young, pre-literate children's exposure to Carlin's unbuttoned language was harmful, though Justice Lewis Powell, in a concurrence, did make the attempt...

...The state's unproven assertion that exposure to erotic material would impair youngsters' "ethical and moral development" was sufficient to uphold the law...

...Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them...

...Perhaps the most damaging fallout of this contempt for minors' ability to think, read, and inquire has been the purging of controversial material from public school courses and libraries...

...For Plato was hardly a friend of intellectual freedom —his ideal republic rigidly censored art and literature...

...They might even imitate the sexual acts that they see...

...In the context of media violence, social science has allegedly 44 DISSENT / Summer 1999 shown that "excessive" exposure "may cause" aggressive behavior in a small but statistically significant fraction of minors...

...Rejecting the state's argument for indoctrination, Justice Robert Jackson explained that the fact that schools are "educating the young for citizenship is reason for scrupulous protection of constitutional freedoms...

...The prospect, for example, of criminalizing e-mail exchanges on sexual topics between parents and teenagers was a powerful argument for the justices that the CDA was hopelessly overbroad...

...Later Supreme Court cases seized upon these "inculcation" and "vulgarity" factors to trump student free-speech claims: a 1986 ruling gave administrators the power to punish a student for making a speech laden with sexual double entendre at a school assembly, and two years later the Court upheld a principal's censorship of articles on divorce and teen pregnancy in the student newspaper...

...Justice Brennan, vociferously dissenting from these homilies, pointed out that not all parents necessarily agreed with the majority's shock and outrage at "Mr...

...Powell asserted that children "are not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees," and that vulgar speech "may have a deeper and more lasting negative effect on a child than on an adult...

...Just a year before the Court's pronouncement that children are not "closed circuit recipients" of state indoctrination, it upheld a New York law that criminalized the sale to minors of "girlie" magazines that were constitutionally protected— that is, not legally "obscene...

...Constitution...

...Proposals for rating and blocking have caught on internationally as well...

...Pornography, they say, may traumatize youngsters, and in any event teaches them bad attitudes about sex...

...Carlin's unabashed attitude towards the seven `dirty words.' " As Brennan's dissent suggested, the dispute in Pacifica was moral and symbolic...

...Thus, judicial rulings such as Boring treat high school literature students like toddlers unable to parse fantasy from reality, while fulminations against media sex or violence simplistically assume that blocking some television shows will change the socially, hormonally, and psychologically driven interests and behavior of American teenagers...

...In 1982, Justice William Brennan wrote in a school-library censorship case that "[s]tudents must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding...

...Pacifica's assumption that government could censor in order to shield minors from "indecent" speech became a reigning proposition of constitutional law—at least until 1996, when Congress passed the Communications Decency Act, or CDA...

...The judges' approval of Plato's argument for indoctrination in "virtuous thoughts" dramatized the extent to which courts by 1998 had rejected the idea that education of the young should include exposure to controversy...

...Justices of Britain's high court, the Law Lords, observed 48 DISSENT / Summer 1999 in 1985 that as teenagers mature, their parents' (and the state's) right to control their decisions in such areas as sexuality dwindle: "if the law should impose on the process of growing up `fixed limits' where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change...

...Particularly for economically deprived youngsters, the Internet is a priceless resource...

...Any system of restrictions on expression— even one as superficially benign in appearance as television or Internet ratings—vests decisions about what is gratuitously violent, offensive, inappropriate, or prurient in classifiers and censors...

...There is much to be said for letting youngsters make mistakes and learn from them (as adults do), rather than being spoonfed only books, films, cartoons, or Internet sites that are considered "kid-safe" by a censoring authority...

...training in authoritarianism...

...shame or confusion resulting from taboos on erotica...

...Justice Abe Fortas announced that neither teachers nor students "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate...

...Many child protectionists would object to extensions of their doctrine that bar mention of contraceptives in sex education classes or ban "controversial" content in literature courses...

...For youngsters, like adults, possess free-expression rights...

...The Yale Biology Department and the American Association of University Women were among the sites blocked by one program, used by a Virginia library, that claimed to filter out only "illegal" material...

...Justice Lewis Powell described the problem: "It is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults" (citing Ginsberg)—but on the other hand, "minors are entitled to a significant measure of First Amendment protection" (citing Tinker...

...In the famous "seven dirty words" decision, Federal Communications Commission v. Pacifica, the Supreme Court seemed to forget about youngsters' First Amendment rights entirely, so benumbed were the five justices in 46 DISSENT / Summer 1999 the majority by concerns about protecting children from vulgarity...

...The teacher, Margaret Boring, had been transferred to a junior high school and stripped of her theater specialty after a parent complained that the play's themes included divorce, homosexuality, and unwed pregnancy...

...In 1997, Senator John McCain introduced legislation requiring that any public school or library receiving federal aid for Internet connections must install software that rates and blocks "inappropriate" sites, and two years later, substantially the same bill was introduced again, substituting "harmful to minors" for "inappropriate...

...violated the indecency standard, which it defined as "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience...

...They are also in the process of becoming functioning adults in a democratic society, and they cannot really be expected to do so if they are shielded from all dangerous or disturbing ideas until they are eighteen...

...Although Justice Stevens's opinion for the Court repeated the mantra that at least some patently offensive speech about sex is harmful to minors, he did not identify what communications fit in that category...

...Instructors must teach that "sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects," and that "abstinence from sexual activity is the only certain way" to prevent pregnancy and sexually transmitted diseases...

...The Supreme Court's suggestion in Reno of youngsters' legitimate interest in matters sexual has, however, had little effect on harmtominors politics...

...these are matters that citizens decide for themselves...

...Instead, he noted that serious discussions of birth control, homosexuality, or indeed the appendix to the Pacifica decision (which reprinted the"Filthy Words" DISSENT / Summer 1999 47 monologue), could violate the CDA, and wrote of the intolerable vagueness of an indecency ban that turned on such concepts as "patent offensiveness" and "contemporary community standards"—precisely the terms, of course, that Stevens had approved in Pacifica nineteen years earlier...

...But Justice Brennan's inspiring rhetoric in the school library case was carefully cabined...

...If, as I will suggest, harm to minors is essentially a shorthand for suppressing ideas and subjects that are considered immoral or offensive, then serious First Amendment questions arise...

...and in national hand-wringing over children's access to such news items as the explicit details of the Starr report...

...What they overlook, however, is that terms like pornography and gratuitous violence are infinitely elastic...

...As youngsters approach majority— arguably, by age fifteen—there ought to be a presumption against censorship (or "protection...

...Protectionists rarely consider the countervailing harms of censorship— feelings of powerlessness...

...Symbolism is not insignificant, but one must be careful when using it as a basis for censorship...

...Like "abstinence-only" sex education, judicial denial of academic freedom for high school teachers and students treats youngsters as fragile creatures in need of protection from controversial or "immoral" ideas, rather than citizens possessed of First Amendment rights...

...In the last two decades, the ideological temperature of this argument has risen, especially in the sexual context, as rhetorical emphasis has shifted from "morality" to "feminism"—that is, to theories propagated by Andrea Dworkin and Catharine MacKinnon that pornography degrades women and eroticizes male domination...

...WHEN IT CAME to erotica, then, minors had limited First Amendment rights...

...Rejuvenating the First Amendment Free expression rights obviously have little meaning for four year olds, but open access to information and ideas—and even just entertainment —is a very different matter for older minors...

...Powell did not elaborate, noting only that "the language involved in this case is as potentially degrading and harmful to children as representations of many erotic acts...

...From 1991-98, she directed the ACLU's Arts Censorship Project...

...minors are not simply "closed circuit recipients of only that which the State chooses to communicate...

...Twenty-six years later, the same philosophy animated the Court's affirmation in Tinker v. Des Moines School District of schoolchildren's right to refuse administrators' orders to remove black armbands that they wore to protest the Vietnam War...

...But—so the argument goes—minors are different...

...More fundamentally, of course, the premise of a free society is that citizens, even young ones, should not be deprived of the knowledge, and exposure to controversial ideas, that enables them to decide these matters for themselves...

...As a federal appeals court explained in striking down an anti-pornography law crafted by activists Andrea Dworkin and Catharine MacKinnon, "any other answer leaves the government in control of all the institutions of culture, the great censor and director of which thoughts are good for us...

...For Pacifica involved not sexually explicit information or pornography but comedian George Carlin's Filthy Words monologue, a satire on the taboos surrounding "seven dirty words" that one supposedly "couldn't say on the public airwaves...

...Sources for this article are available from the author, c/o Dissent...

...and teenagers are sexually active the world over...

...indignation at the firing of a good teacher, banning of a good book, or aborting of library research on a sensitive topic by mindless filters...

...Justice Stevens said in Reno, "[t]he interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship...

...The former Norwegian Ombudsman for Children, Wlfrid Flekkoy, has pointed out the importance of recognizing free-expression rights, and thereby countering feelings of worthlessness and powerlessness, among adolescents who are kept for ever longer periods in situations of dependence...

...Children in American political mythology have become tender innocents, incapable of conceiving a corrupting thought unless it is thrust upon them...