Minors and First Amendment Rights
Elshtain, Jean Bethke
MARJORIE HEINS has written an intelligent but predictable polemic in favor of "free expression" for those she variously calls "youngsters," (this excludes "little ones" though how little we are...
...shame or confusion resulting from taboos on erotica...
...By stripping parents and teachers of their tasks in relation to their children—tasks of nurturance, guidance, and, yes, protection— one also strips them of the responsibility that is theirs...
...Are there no other concerns with moral and civic sentiments that might kick in as we conjure with such matters...
...Take, for example, the term "free expression...
...But a democratic society doesn't do that by depriving parents of the most basic right of all, the right to rear their children according to their own lights...
...Ethical-formation accounts...
...It is difficult to exercise responsibility if there are all sorts of Guardians around trying to protect children from those charged with the daily tasks of seeing to their welfare...
...Civic-sentiment accounts...
...Here goes anyway...
...Do WE REALLY face a "censorship juggernaut...
...The only evidence that I know of suggests that overwhelming children at too early ages by too much stuff, especially of an egregiously sexual or violent nature, has an inhibiting effect on subsequent development, but maybe I've been reading the wrong writers...
...What about explicit pornographic Web sites involving youngsters...
...Presumably so...
...But this doesn't tell us much, for Heins casts her net so widely it becomes unclear whether she would ever favor any attempt by concerned political, social, civil, or parental bodies to block, inhibit, or prohibit particular images or words...
...For Heins associates her position with one that seeks to protect children from the "harms of censorship" at which point follows a wholly unsubstantiated list of harms...
...We know this is a polemic because those who oppose her views "fulminate" rather than argue, so I suppose what I am about to argue will be taken by Heins as yet another fulmination...
...And remember that censorship, for Heins, is any attempt to limit access to any materials or any media where "youngsters" or "minors" are concerned...
...Because this premature immersion makes for a kind of hardening of destructive forms of identity in children before they have had the opportunity for development within a somewhat protected cordon sanitaire afforded by home and school...
...In denying to citizens the right to act in the public arena in order to inhibit certain materials that overwhelmingly lack civic or political content—Heins herself is writing from a kind of lofty Guardianship stance...
...If, as Heins claims, "teenagers are sexually active the world over," there should not, in her world, be any problem of any kind with materials depicting sex acts between "youngsters," so long as they are not "little ones...
...She warns against the tyranny "of their [the children's] own group, against which, because of its numerical superiority, they cannot rebel, with which, because they are children, they cannot reason, and out of which they cannot flee to any other world...
...Surely most of us would want to distinguish one case from the other...
...If there is such evidence I'd like to hear about it...
...To be sure, constitutional adjudication cannot be limited to the Framers' intent...
...Heins thinks "youngsters" can, out of the dizzying array of words and images—many of them stunning in their explicit violence and representations of human beings in demeaning and degraded positions—somehow develop into good citizens...
...Does she see no merit in trying to limit the voluptuaries of violence...
...If, as Heins notes, correctly on my view, "terms like pornography and gratuitous violence are infinitely elastic," what are we to say of "free expression...
...Heins would leave "youngsters" alone with their rights, sans adult "protectionism...
...Government does have a stake in preparing children "to fulfill their future duties as citizens...
...When our Founding Fathers penned the First Amendment they had in mind limitations on political speech and the free exercise of religion, not the "right" of a "youngster" to shout "Adolph Hitler Rules...
...Does Heins have no problem with unlimited access on the part of "youngsters" to sites on weapon and bomb construction...
...The upshot over time, Arendt would insist and I would agree, will not be more freedom but less...
...The European Parliament doesn't escape her wide net of excoriation for it, too, is guilty of trying to inhibit the enlightenment of "youngsters" by "rating and blocking of Internet sites...
...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...
...JEAN BETHKE ELSHTAIN is professor of social and political ethics at the University of Chicago and the author of many works, including Democracy on Trial...
...Presumably so...
...What's wrong with this list...
...It makes little sense to me to yank either Marquez or Angelou from high school libraries...
...Cognitive accounts...
...in a high school corridor...
...Finally, let me just note that Heins's argument is deficient in that quality Hannah Arendt considered crucial for democratic public life, namely, the faculty of judgment...
...This list includes promoting "feelings of powerlessness...
...If you are a democrat, however, such parents are doing what people in a democracy do— fighting with the political means available to them against a much more powerful foe (big business and big television) to protect (okay, I'll use the word) their children from materials they deem inappropriate or even damaging...
...But the terrible irony nowadays is that the proliferation of junk and trash talk and images of human sexual degradation and bondage and Internet instructions on how to blow up your high school wipe out serious political and civil discourse rather than enhance it...
...Nor does one find much in the way of nuance in her underlying (and under-argued) presuppositions and basic categories of analysis...
...She refuses to discriminate between what might be called easy and hard cases...
...Heins is so lathered up about the "classifiers" that she acquiesces in, even celebrates, a public world portrayed as one big unrestrained, overheated stew pot—not quite from nursery 76 DISSENT / Fall 1999 to grave (presumably one needs to be toilet trained before one can exercise all one's "free expression rights") but pretty close to it...
...And this will be in the interest of crass money-making in most instances rather than anything that remotely resembles promoting civil or political "content...
...Violence gets mentioned as part of a shopping list of materials she taxes the "censors" with wanting to limit or block...
...On what account of development is this so...
...Youngsters," Heins declares, are "citizens" with First Amendment rights rather than "fragile creatures in need of protection...
...With this Arendt would strenuously disagree...
...There is nothing we can do save to sit back and enjoy the ride, it seems, and in clear conscience, too...
...Discriminating between types of cases, materials, and media is not Heins's strong suit...
...Taking Madame Bovary out of a school library and blocking Nazi hate sites on the Internet are treated indiscriminately, if we follow the logic of her argument...
...I wonder: does Heins believe that it is an unacceptable blow against the precocious decision-making capacities of pre-teens for Europeans, who find it a bit more difficult to forget the experience of fascism than do Americans, to block antiSemitic, anti-foreign drivel on the Internet...
...But let's get down to brass tacks, especially in postColumbine High School America...
...So what are her sources here...
...MARJORIE HEINS has written an intelligent but predictable polemic in favor of "free expression" for those she variously calls "youngsters," (this excludes "little ones" though how little we are not told), "older minors" and, of course, "teenagers" though her argument in favor of nigh-unlimited access to any and all materials through any and all media extends to the "youngster/ older minor" category as well ("Rejuvenating Free Expression," Dissent, Summer 1999...
...training in authoritarianism...
...In other words, it isn't adults that kids need to be spared from—it is the overbearing and overweening coercive power of peer group conformity...
...Heins presumably recognizes that if she said "take images of slaughtering members of minority DISSENT / Fall 1999 77 groups on the basis of Nazi ideology" out of the hands of youngsters, our sympathies would tilt toward the "censors...
...If you are a First Amendment absolutist, even attempts by parents to organize consumer boycotts against sponsors of programs that traffic in violent or damaging content presage a Berlin Wall of control...
...She presents no evidence that limiting access to any and all sexually explicit materials leads to shame or confusion...
...Heins variously trounces or blows kisses in the direction of the courts, depending on whether or not they have done the bidding of free expression absolutists or not...
...Second, note once again the sleight of hand in which taking a "good book" out of the hands of youngsters becomes the example of what the "protectionists" want to do...
...Heins scorns "paternalism" and "protectionism...
...Being American, Heins's obsessions are primarily sexual, so let's go to a sexual question...
...Are any and all such efforts to come under her generic term of opprobrium—"censorship...
...This is surely the Plastic Man of categories...
...But surely there are serious issues of political judgment involved in some of the examples Heins proffers in order to condemn any attempt to create a more civil civil society by restraining certain sorts of materials...
...Psycho-sexual accounts...
...Oddly enough, Heins never addresses the issue of violent material of an explicit nature in any detail...
...Is the only concern a pragmatic cut-off point having to do with age...
...If parents are stripped of their authority in relation to children, Arendt continues, the result will be more conformity rather than less, because it is almost impossible for children to resist the pressures of peer groups...
...Arendt resolutely opposed the premature politicization of the young, by which she meant pushing kids prematurely into the midst of controversies of the sorts Heins aims to promote...
...I would never want to defend all the particular actions Heins criticizes...
...If the lesson learned by those "youngsters" Heins is so determined to protect from the "protectionists" is that anything goes, the first thing to go will be what Mill and other historic articulators of liberalism called the "soft voice" of reason...
...Teenagers "need" all the stuff the "protectionists" want to limit, she claims, for their "development...
...First, Heins presents not a single shred of evidence that V-chips or something similar inculcate powerlessness or authoritarianism...
...These, for her, include any and all attempts to limit access by children to certain sorts of materials...
Vol. 46 • September 1999 • No. 4
