Saving Our Children from the First Amendment
Publication Year: 2003
The First Amendment is vital to our political system, our cultural institutions, and our routine social interactions with others. In this provocative book, Kevin Saunders asserts that freedom of expression can be very harmful to our children, making it more likely that they will be the perpetrators or victims of violence, will grow up as racists, or will use alcohol or tobacco.
Saving Our Children from the First Amendment examines both the value and cost of free expression in America, demonstrating how an unregulated flow of information can be detrimental to youth. While the great value of the First Amendment is found in its protection of our most important political freedoms, this is far more significant for adults, who can fully grasp and benefit from the freedom of expression, than for children. Constitutional prohibitions on distributing sexual materials to children, Saunders proposes, should be expanded to include violent, vulgar, or profane materials, as well as music that contains hate speech.
Saunders offers an insightful meditation on the problem of protecting our children from the negative effects of freedom of expression without curtailing First Amendment rights for adults.
Published by: NYU Press
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Several of the ideas contained in this book were discussed in earlier work. One of the approaches to violent depictions presented was discussed more fully in an earlier book, Violence as Obscenity, and in articles in the William & Mary Bill of Rights Journal and the Oklahoma Law Review. Earlier analysis of problems raised by the Internet was published in the Drake Law Review.
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In 1949, Justice Jackson wrote: “There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”2 Similarly, writing for the Court in 1963, Justice Goldberg stated: “[W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact.”3 The position that the Constitution is not a suicide pact finds support in other opinions of the Supreme Court4 and lower courts.5
1 The Most Important Freedom
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The First Amendment was originally the third of the amendments sent to the states for ratification, but it is fitting that it enjoys the place and title it does. The first to be ratified, it contains the most important of our freedoms—the freedoms of speech and of the press. A people cannot be free and self-governing unless they are free to discuss the issues facing their society and to debate the direction society should follow or to protest actions the government may have taken.
2 The Costs of Free Expression
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Free speech, despite the essential role it serves in a politically free society, does have its costs. For the most part, those costs are worth bearing. But, before concluding that they are always worth bearing, it is important to examine the evils that may be seen to flow from expression. With an appreciation of the issue, it may be more likely that a reasonable balance, particularly with regard to free expression and youth, may be drawn.
3 Relieving the Strain on the First Amendment
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The costs associated with free expression raise the serious concern that society will be tempted to conclude that the free-expression clauses are not worth retaining. While the question of costs versus benefits should be taken seriously, the importance of the speech and press clauses to a free and democratic society counsels in favor of protecting the First Amendment from reductions in strength that would do injury to the political system.
4 Inculcating Values
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Children are not just miniature adults. This is not another case of technology having found a way to cram all the computing power, understanding of values and judgment of a full-size adult into a smaller package. Children, rather than miniatures, are projects under construction. Like all construction projects, supervision is required to be sure the pieces fit together well and the final result is nondefective.
5 Children and Other Constitutional Rights
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The suggestion of a First Amendment with less strength, when children are concerned, coupled with a strong First Amendment protecting adult-to-adult communication is not without at least analogical constitutional authority. Adults enjoy a variety of constitutionally protected rights that have different strength when applied to children. In some cases the child has less right to make what would be constitutionally protected decisions if the individual were an adult.
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The treatment of obscenity provides an example of how differing standards may be used for material distributed to children compared to material distributed to adults. The Supreme Court has held that material not obscene for an adult audience may be considered obscene when the audience consists of minors. For the most part, the result of this different treatment is to provide for the balance argued for here. Adults generally have access to material without government interference, while children are protected from unsuitable images.
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Doom is the best known of the “first person shooter” genre of video games. In these games the player holds a realistic hand gun and fires at people who pop up or come around corners on the video screen. Killing quickly and efficiently produces high scores. The games are such good training that adaptations are used by the armed forces and law enforcement agencies. Most users, however, are not soldiers but teenage boys.
8 The Internet
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The Internet allows a school child to access more information to help on a homework assignment than can be found in all the other sources available to the child. But the same child may also be exposed to sites requiring no credit card or identification but containing sexual material of more than a mild variety. The child may not even be trying to find explicit material. Seemingly innocuous or valuable-sounding sites, such as “www.WhiteHouse.com,” turn out to be pornographic.
9 Hate Speech
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An Oscar Hammerstein song in the musical South Pacific makes the point that racial hatred is not natural but learned. Hammerstein wrote that hatred and fear of those with differently shaped eyes or skin of a different shade has to be “carefully taught.”1 It may be that children are not born altruists and exhibit some, or mostly, egocentric traits, but infants and very young children do not seem to display the racist attitudes some people develop later in life. Hammerstein went on to say ...
10 The Coarsening of Society
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Consider the case of a hypothetical disturbed individual who gains gratification from uttering profanity before an audience of children. The individual makes it a practice to dress as a clown and to frequent parks with children’s playgrounds. He begins by juggling, making balloon animals and engaging in comic banter. As a crowd of children gathers around him, with parents in the background, he begins to add profane words to his running monologue.
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Imagine an advertising campaign in which flyers advertising cigarettes are passed out to children leaving Cub Scout or Brownie meetings. Given the illegality of sales of cigarettes or alcohol to children, the campaign seems almost unimaginable. But clearly ad campaigns for such products, while said to be aimed at adults, have an effect on children, and it seems hard to believe that they were not intended to have that impact.
12 Speech in the Schools
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Schools are central both to this effort and to the child’s life. Once children begin school, they may spend more of their time on the average school day interacting with the school population than with their parents. Their experiences in school, both in the formal classroom setting and in informal settings such as the hallways, the cafeteria and the locker room, are important to their psychological development.
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The entertainment industry is not likely to greet the arguments presented here with anything close to enthusiasm. There are certain to be invocations of the importance of the freedom of expression, not only for political advocates but for artists, writers, singers and filmmakers. Such freedom of expression is important. Indeed, it is vital in a democratic society, at least as far as political speech is concerned, and it is vital for a vibrant culture, even when the expression has no political content.
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About the Author
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Page Count: 319
Publication Year: 2003