Children's Freedom of Speech and Expressive Maturity
Shaub, Jonathan David, Law and Psychology Review
The First Amendment's protection for the freedom of speech has never been satisfactorily applied to children in a way that accounts for the significant variance in maturity and vulnerability among different ages of children. The protections of the First Amendment and its rough distinction between speech and conduct have ensured that the government cannot exercise expressive paternalism or content regulation over adults without overcoming a strong presumption against such action. While these basic principles are well established when adult speech is at issue--even if the fundamental values behind them are a continuing source of debate--they have not been systematically applied to children's speech. A thorough exploration and application of the numerous values that animate the First Amendment's protection of speech demonstrate that many of these values are as applicable to some children as they are to adults. Their applicability depends on children's expressive maturity. As such, this Article presents a comprehensive framework for analyzing children's expressive rights: a graduated scale of expressive maturity. The wide diversity of development and capacity among various ages of children means that no boundaries based on age or ability will ever be perfect, but this Article employs democratic theory, First Amendment theory, and psychological research to present a basic burden-shifting framework that accounts for the wide range of capacity and vulnerability within the larger category of "children," that is all individuals under the age of eighteen. When it comes to the First Amendment's protection of free speech, many ages of children, especially adolescents, share much of the expressive maturity of adults and are competent to exercise their expressive autonomy. Speech may only harm some children to the extent it harms adults, but other children are more vulnerable to particular expressive harms because of their expressive immaturity. With these principles in mind, this Article delineates a graduated scale of expressive maturity that accounts for capacity, vulnerability, and the unique nature of the freedom of speech. The default of our First Amendment has always been to protect speech and to erect a presumption against expressive paternalism. This default applies no less powerfully to the expressive rights of capable children than it applies to adults.
Increasingly, the Court is facing the question of how the Constitution and the Bill of Rights should be interpreted when applied to children. (1) The Court has recently encountered cases asking it to determine how the First, (2) Fourth, (3) Fifth, (4) and Eighth (5) Amendments apply to children, and other cases relating to children's rights are likely to reach the Court in the near future. (6) One approach to this question is to advocate for a principled, consistent framework for addressing 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 will implicate 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 at issue. (7) Although the Supreme Court and lower courts have long recognized the existence of children's constitutional rights, the current categorical approach, treating all individuals under the age of eighteen as a coherent set, disregards the diverse abilities and needs of the different ages of children. (8) While many children are obviously different from many adults, the issue is what presumptions should a court begin with in accounting for these differences and to which children should those presumptions apply. This Article attempts to set forth a more principled analysis specific to the First Amendment context that directly addresses children's expressive rights, distinguishing them from other rights grounded in conduct. …