This article is reprinted with permission from the July 30, 2004 edition of the New York Law Journal. © 2004 ALM Properties Inc. All rights reserved. Further duplication without permission is prohibited. 7/30/2004 N.Y.L.J. 2, (col. 3) New York Law Journal Volume 231 Copyright 2004 ALM Properties, Inc. All rights reserved

Saving Our Children From the First Amendment
By Kevin Saunders (NYU Press)
Reviewed by David Wrobel

I had intended to bury this book, not to praise it. Just a glance at its title and a glimpse at its premise —- that there is a benefit to curtailing the First Amendment — got my old liberal knee to start jerking. Surely, I thought, in this age of the “Patriot Act,” when our civil liberties are threatened by fears of terrorism, the last thing we need are legal arguments in favor of restricting free speech in the name of family values.

But a funny thing happened on the way to this book review. I discovered that Kevin W. Saunders, Professor of Law at Michigan State University-DCL College of Law, had anticipated every one of my arguments, and that he did not entirely disagree with them. To my surprise, I found that Saunders is not a right-wing prude bent on censoring material he deems “offensive.” To the contrary, he is a thoughtful academic who favors restrictions on what children — and children only — should see and read. And most importantly, he believes that adults should not be treated as children.

Saunders argues, quite correctly, that there is already ample case law to support the position that children need not be treated equally to adults in the eyes of the law. They do not have the same obligations as adults, nor do they enjoy the same privileges. There is a minimum age at which you can drink, drive and vote, and rightly so. In a well structured argument, Saunders proposes that children are not entitled to the same First Amendment freedoms as are adults.

In 1930, a Massachusetts jury was asked to declare Theodore Dreiser’s “An American Tragedy” to be obscene. During closing arguments, the prosecutor read passages from the book and asked the jurors to consider the potential impact of the material on the morals of a young girl. “How, sirs,” he pointedly asked the jurors, “would you like to have your fifteen-year old daughter read that?” Not only was a prosecution verdict returned, it was unanimously affirmed by the Massachusetts Supreme Court, which found the passages “indecent, obscene and manifestly tending to corrupt the morals of youth.’

Times have certainly changed. There has been a fundamental shift in First Amendment law in favor of free artistic expression and obscenity trials are far and few between. Partly as a result, societal norms have changed to the point where “An American Tragedy” might now be required reading for 15 year old girls in certain high schools. Arguments concerning the “corruption of the morals of youth” seem positively quaint.

But is this all for the good? Saunders raises this important question. Certainly, we do not want to go back to a world in which all material distributed to the public is vetted with an eye toward what would be offensive to children. Most adults would not want to live in the G-rated world that would result. But is it fair to our children that we raise them in an R-rated society?

These days we rarely talk about the “corruption of morals,” largely because we cannot agree on a common definition of “morality,” but surely we can agree that children can suffer real harm when they are exposed to material they are emotionally incapable of understanding. Only a fool would argue that it is good for young children to be exposed to hard-core pornographic images. And although the social science may not be entirely conclusive, it seems to make common sense that exposure to excessive violence and hate-speech can have a deleterious effect on young minds.

Saunders argues for a “dual approach” to the First Amendment which recognizes that there is a societal interest in shielding children from certain offensive material, be it sexually explicit films, excessively violent video games, racist oratory or profane speech. Such an approach would permit government restrictions on the access of young people to certain material, provided adult access remains unfettered. Saunders is careful to propose that any limits should have no more impact on adults than is “absolutely necessary.’

Interestingly, Saunder’s approach seems consistent with the one recently adopted by the Supreme Court in Ashcroft v. American Civil Liberties Union, wherein the Court upheld an injunction staying enforcement of the Child Online Protection Act, or COPA. Under the act, which was backed by both the Clinton and Bush administrations, purveyors of internet smut would be required to obtain credit card numbers, or similar information, before providing access to their sites, on the theory that only adults have credit cards. In a 5-4 decision, the Supreme Court remanded the case for further review regarding whether internet filter technology might achieve the same result, with less impact on adults.

‘Filters are less restrictive than COPA,” the Court said. “They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished.’

Thus, in the end, Saunders, and the Supreme Court, may well be on the right track, balancing freedom of speech with a rational concern for the needs of children. Perhaps advances in technology, like internet filters and V-chips, will provide the means by which we can achieve this elusive goal.

Of course, such technology will require a modicum of proficiency with computers that most adults now lack. Indeed, I would think that more children could install screening software than parents.

Maybe we need our children to become parents before we get this right.