The U.S. Supreme Court's First Amendment Refusal to Protect Children Regarding Sexually Explicit Speech on the Internet

Vol. 15, Digitization and the Law (Eric Hilgendorf & Jochen Felde (eds.) December 2017) (Nomos) ISBN: 978-3-8487-4700-9

28 Pages Posted: 28 Aug 2018

See all articles by Mark Kende

Mark Kende

Drake University Law School

Date Written: August 16, 2018

Abstract

This international conference paper examines how the U.S. Supreme Court’s Internet free speech decisions fail to protect children from sexually explicit “indecent” speech. This is troubling. The Court even invalidated a federal law focused on children, modeled after the Court’s own obscenity doctrine. The Court’s initial decisions were based on strict scrutiny. This paper, however, criticizes early Internet cases, as well as “modern Internet 2.0” cases for failing to protect children. Recently, the Court even used a more lenient intermediate scrutiny, but still struck down a state law that precluded convicted sex offenders from accessing social media Web sites open to juveniles. Though the law was not well crafted, the Court showed little concern about children, while reasoning that pedophiles could make socially productive use of these sites. This paper advocates the Supreme Court jettison scrutiny levels here that often reach the wrong results. Instead, the Court should adopt a balancing test similar to that used in Europe. This test would be more factually nuanced, consistent in the long run, and protect children. This paper was part of a symposium on “Digitization and the Law” sponsored by the University of Wurzburg.

Keywords: First Amendment, freedom of speech, Internet, indecent speech, children, U.S. Supreme Court, balancing, cyberspace, social media, sexually explicit speech

Suggested Citation

Kende, Mark, The U.S. Supreme Court's First Amendment Refusal to Protect Children Regarding Sexually Explicit Speech on the Internet (August 16, 2018). Vol. 15, Digitization and the Law (Eric Hilgendorf & Jochen Felde (eds.) December 2017) (Nomos) ISBN: 978-3-8487-4700-9. Available at SSRN: https://ssrn.com/abstract=3232987

Mark Kende (Contact Author)

Drake University Law School ( email )

27th & Carpenter Sts.
Des Moines, IA 50311
United States
515-271-3354 (Phone)
515-271-1958 (Fax)

HOME PAGE: http://www.drake.edu/law/clinics-centers/conlaw/

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