Kids Have First Amendment Rights, Too

By Peck, Robert S.; Symons, Ann K. | American Libraries, September 1997 | Go to article overview
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Kids Have First Amendment Rights, Too

Peck, Robert S., Symons, Ann K., American Libraries


In striking down the purpotedly Internet-purifying Communications Decency Act (CDA), the U.S. Supreme Court held that First Amendment principles apply with undiminished vitality in the vast, uninhibited expanses of cyberspace. Likening electronic conversations to those of a town crier with an enhanced audience and transmitted text and images to Revolutionary-era pamphlets, the Court's opinion enunciated an expansive view of free speech for the 21st century that was rooted in its 18th-century textual origins.

ALA and Freedom to Read Foundation lawyer Bruce Ennis, who argued the case before the Supreme Court, called the decision the "birth certificate for the Internet." The High Court's decision guarantees that speech on the Internet receives the highest level of constitutional protection available, equal to that afforded to newspapers and books and not the more limited free-speech protection granted to broadcasters.

Some answers to Internet problems skirt around fights

While the Court's decision definitively resolved the freespeech status of "indecent" and "patently offensive" electronic expression, many people, quite naturally, continue to be concerned about the exposure of young children to the Internet's most untamed frontiers, from sexually explicit material to violence to "politically incorrect" speech. President Clinton announced that he wants to encourage efforts to develop a "V-chip" for the Internet. The U.S. Congress and the states have begun to explore more narrowly drafted legislation. And librarians already are confronting demands that software filters be installed on Internet access terminals.

Certainly, some of these "solutions" to perceived problems suffer the same defects that led the Supreme Court to invalidate the CDA - that is, they seek to ban material protected by the First Amendment for both children and adults. What is too often lost in these discussions is that children have First Amendment rights, too. That fact has important implications for libraries that should not be overlooked.

Some First Amendment basics

It is important to begin with some First Amendment basics:

* Obscenity was and is illegal without the CDA. Obscenity is a very narrow category of expression that the Supreme Court has said largely falls outside the First Amendment's protection.

* Sexual expression, including nudity, that is merely indecent remains within First Amendment protection.

* "Harmful to minors," another category, is essentially an obscenity standard using youngsters as the relevant yardstick. To be harmful to minors, speech must therefore be prurient, patently offensive, and without value for minors. Material that has substantial value for a significant minority of 17-year-olds cannot be considered harmful to minors. Thus, this category covers only a very narrow span of material. Forty-eight states have harmful-to-minors laws, many with exemptions for public libraries.

Existing state laws supersede librarians' judgments

Internet expression that falls within the standards of obscenity and harmful-to-minors is already made illegal by existing criminal laws aimed at the producers and distributors of those forms of expression. Deeming material obscene or harmful to minors requires both specific state laws that define the illegal material and neutral due-process hearings - something that librarians cannot substitute their judgment for.

Even though the government has a legitimate interest in protecting younger children from certain harmful materials, the CDA case reminds us that there are substantial limitations on the way in which those government interests are pursued. Government actions in this area must accommodate the rights of children to receive a wide variety of materials, the rights of parents who wish their children to have access to such material, and the rights of adults to use the Internet for indisputably mature materials.

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Kids Have First Amendment Rights, Too


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