Children's Freedom of Speech and Expressive Paternalism in a Liberal Democracy
Jonathan David Shaub
Northwestern University - Pritzker School of Law
September 8, 2011
Law & Psycology Review, Forthcoming
Increasingly, the Court is facing the question of how the Constitution and the Bill of Rights apply to children. The Court has recently encountered cases asking it to determine how the First, Fourth, Fifth, and Eighth Amendments apply to children, and other cases relating to children’s rights are likely to reach the Court soon. The intuitive approach is to advocate for a principled, consistent framework for approaching the interaction between children and constitutional rights. However, to adopt such an approach is to ignore the fundamental distinction our democracy makes between speech and conduct. Obviously, the treatment of children under any constitutional provision implicates similar concerns about children’s capacity, immaturity, and vulnerability. But the potential harms and benefits of adopting certain ex ante presumptions about children in applying these rights are vastly different when expression is concerned. Furthermore, an all-inclusive generalization about children disregards the diverse abilities and needs of the different ages of children. While many children are obviously different than many adults, the question is with what presumptions should a court begin in order to account for these differences and to which children should those presumptions apply. A more principled analysis, distinguishing speech from conduct and distinguishing among different developmental ages of children, demonstrates that a graduated scale based on expressive maturity would better account for the variation among minors and force states to more narrowly tailor their laws and regulations.
The recent decision in Brown v. Entertainment Merchants Ass’n , resulting in four vastly different opinions and unique ideological combinations, illustrated the lack of clarity regarding the appropriate way to apply the First Amendment’s protection of speech to children. The Court has never articulated a coherent theory of children’s expressive rights, instead issuing either opinions confined to a specific category or context of speech or opinions that evade the issue altogether by focusing on adult free speech rights. Further, numerous opinions in cases involving expressive rights cite statements from cases involving other constitutional rights without discussing the importance of the distinction between speech and conduct in the context of the First Amendment. The framers of the First Amendment specifically protected “speech” and did not protect “conduct” or a general right to develop one’s personality. This “rough distinction” between speech and conduct represents a judgment that speech, as a general matter, leads to less harm than conduct. Thus, the First Amendment sets up a presumption that speech is protected, choosing to place the burden on those individuals who would seek to restrict it. However, this rough distinction between speech and conduct and its accompanying presumption have not been rigorously applied to the state’s paternalistic suppression of children’s expression.
In order to create a comprehensive framework by which the courts and society should treat children’s expressive rights, this Article draws on democratic theory, free speech principles, psychological research, and case law. First, the values and principles underlying our liberal democracy’s protection of the freedom of speech and presumption against the state exercise of expressive paternalism must be identified and systematically applied to children. Second, the specific ways in which various ages of children are different from adults must be examined in light of these values in order to determine the extent to which these specific ages of children should be treated differently. Based on the values of the First Amendment in a liberal democracy and the developing capacities of different ages of children, this Article proposes a graduated scale of expressive maturity by which courts should evaluate children’s expressive rights.
In this vein, Part I demonstrates that the instrumental and intrinsic values underlying the protection of speech are no less applicable to children, especially older children, than they are applicable to adults. Part II addresses the counterarguments in favor of the common presumption that children are categorically different than adults. Part III discusses the complex relationship between children, their parents, and the state in our modern pluralistic democracy, demonstrating the fundamental problem with the idea of the government as the expressive parent of all children. Part IV sets forth the principles necessary to adopt guiding presumptions for children’s expressive rights, and Part V establishes a set of presumptions to guide the courts’ inquiry - a graduated scale of expressive maturity - based on current psychological research into children’s capacity and vulnerability. Finally, Part VI explores the impact of the regulation of children’s expressive rights on adults.
Number of Pages in PDF File: 47
Keywords: first amendment, freedom of speech, children, juveniles, entertainment merchants, brown, violence, video games, bullying, indecency, juvenile, psychology, bandura, piaget, locke, mill, commercial speech, pacifica
Date posted: September 9, 2011