Childrens First Amendment Rights

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Childrens First Amendment Rights

• Group Information RightsKay Mathiesen
• SIRLS

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Review

• Groups have information rights
• These rights may be linked to the groups unique
  cultures
• e.g., indigenous groups, ethnic groups
• These rights may be linked to the members shared
  features
• e.g., disabled, children
• These rights may be linked to the members
  oppression and marginalization, due to the shared
  feature
• e.g., LGBT, African-Americans

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Overview

• Childrens First Amendment Rights
• Of Expression
• Limitations on Childrens Rights of Expression
• Of Access

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Childrens Rights

• What sorts of information expression, access, and
  control are required to allow children to live a
  minimally good life?
• Do children have rights to be protected from
  information?
• Do children have other rights (e.g., to safety,
  to an education), which override their rights to
  information?

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Childrens First Amendment Rights

• Minors have rights of expression, rights to
  access information which the government cannot
  infringe.
• However, they do not have identical First
  Amendment Rights to Adults.
• The Court has upheld the role of the state in
  protecting children from speech.

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Minors Rights of Expression

• Tinker v. Des Moines
• School wanted to prevent students from wearing
  arm-bands to protest a war.
• The court held that Students in school as well
  as out of school are "persons" under our
  Constitution. They are possessed of fundamental
  rights which the State must respect Students do
  not shed their constitutional rights to freedom
  of speech or expression at the schoolhouse gate.
  (393 U.S. 503 (1969)).
• http//caselaw.lp.findlaw.com/cgi-bin/getcase.pl?n
  avbycasecourtUSvol393invol503

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Limits to Minors Rights of Expression in School

• In Hazelwood v. Kuhlmeier, however, the court
  held that
• First Amendment rights of students in the public
  schools are not automatically coextensive with
  the rights of adults in other settings, and must
  be applied in light of the special
  characteristics of the school environment. A
  school need not tolerate student speech that is
  inconsistent with its basic educational mission,
  even though the government could not censor
  similar speech outside the school. (484 U.S. 260
  (1988))
• To see the distinctions that the court made
  between the Tinker case and the Hazelwood case
  see this diagram.

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Minors Rights to Access

• Board of Education v. Pico
• The Board of Education Island Trees ordered that
  books it characterized as "anti-American,
  anti-Christian, anti-Semitic, and just plain
  filthy, be removed.
• These included Slaughterhouse Five and Soul on
  Ice.
• The court found that the board could not extend
  their claim of absolute discretion beyond the
  compulsory environment of the classroom into the
  school library and regime of voluntary inquiry
  that there holds sway. Furthermore,Local school
  boards may not remove books from school libraries
  simply because they dislike the ideas contaiend
  in those books (457 U.S. 853 (1982)).

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Limits to Minors Rights to Access

• Pico held that the Board could exclude works on
  the grounds that they are "educationally
  unsuitable" or "pervasively vulgar" (Pico, 457
  U.S. at 871).
• In Ginsburg v. New York it was held that material
  not obscene as to adults, may be obscene as to
  children, also called material harmful to
  minors--a sort of obscenity light which
  applies to minors only.
• In FCC v. Pacifica court held that with regard to
  broadcast media like radio, an even tighter
  indecency standard is in effect.
• For a discussion of the obscenity exception to
  First Amendment Rights see my lecture on
  Intellectual Freedom.)

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Harmful to Minors

• That quality of any description or
  representation of nudity, sexual conduct, sexual
  excitement, or sadomasochistic abuse when it,
• Predominantly appeals to the prurient, shameful
  or morbid interest of minors
• Is patently offensive to prevailing standards in
  the adult community as a whole with respect to
  what is suitable material for minors, and
• Is utterly without redeeming social importance
  for minors (390 U.S. 629 (1968)).

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Internet Filters

• In Reno v. ACLU the court struck down the
  Communications Decency Act (which would prohibit
  putting indencent material on the internet that
  could be accessed by minors). They held that. In
  order to deny minors access to potentially
  harmful speech, the CDA effectively suppresses a
  large amount of speech that adults have a
  constitutional right to receive and to address to
  one another.
• However, in US v. ALA, they upheld the Child
  Internet Protection Act, which requires Libraries
  which receive federal funds to filter computers
  for material harmful to minors.

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American Library Association Position

• The ALAs position is that it is never
  appropriate to limit a persons access to
  information based on age.
• ALA Statement on Free Access to Libraries for
  Minors
• Librarians cannot predict what resources will
  best fulfill the needs and interests of any
  individual user based on a single criterion such
  as chronological age, educational level, literacy
  skills, or legal emancipation.

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Some Criticisms of ALAs Position in re
Constitutional Law

• ALA states Children and young adults
  unquestionably possess First Amendment rights,
  including the right to receive information in the
  library.
• True, but they do not posses the same rights as
  adults their rights are more limited (as we have
  seen).

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Constitutional Restrictions

• ALA states Constitutionally protected speech
  cannot be suppressed solely to protect children
  or young adults from ideas or images a
  legislative body believes to be unsuitable for
  them.
• Depends on what you mean by unsuitable. The
  legislature may restrict access to material
  deemed harmful to minors. It may also restrict
  the broadcast of indecent materials.

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Knowing it when you see it

• ALA states Librarians and library governing
  bodies should not resort to age restrictions in
  an effort to avoid actual or anticipated
  objections, because only a court of law can
  determine whether material is not
  constitutionally protected.
• There are laws against distributing material
  harmful to minors or displaying such material in
  front of children. This assumes that we can make
  such determinations.

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Parental Responsiblity

• ALA States Librarians and governing bodies
  should maintain that parents, and only parents,
  have the right and the responsibility to restrict
  the access of their children. Librarians and
  library governing bodies cannot assume the role
  of parents or the functions of parental authority
  in the private relationship between parent and
  child.
• In Ginsberg the court held that Constitutional
  interpretation has consistently recognized that
  the parents' claim to authority in the rearing of
  their children is basic in our society, and the
  legislature could properly conclude that those
  primarily responsible for children's well-being
  are entitled to the support of laws designed to
  aid discharge of that responsibility. P. 639.

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References

• In preparing this lecture, I relied heavily on
  the Memorandum Minors Rights to Receive
  Information Under the First Amendment by Chmara
  and Mach (http//www.ala.org/Template.cfm?Section
  issuesrelatedlinksTemplate/ContentManagement/Con
  tentDisplay.cfmContentID78124).