Friday, February 27, 2009
For a long time the Supreme Court of the United States has assumed that the government has a compelling interest in protecting children from non-obscene, sexually explicit speech. In addition, the Court has also held that radio and television broadcasting receive less First Amendment protection than other forms of media such as cable and satellite television and the internet. These holdings have led the Federal Communications Commission to try and censor non-obscene indecency and invectives from the airwaves and also generated numerous attempts by Congress to censor the internet to protect our children. This article argues that there is no substantial evidence demonstrating that children are seriously harmed by non-obscene sexually explicit speech, and therefore the government does not have a compelling interest in keeping children away from such speech. In addition, the original rationale for the Court's decision that broadcasting receives less First Amendment protection than other media, i.e., that broadcasting is uniquely pervasive inside the home, is no longer true and the Court should therefore find that television and radio broadcasters should receive the same First Amendment protections as other media. This article concludes that, in light of the fundamental principle of First Amendment law that the government is not allowed, absent a compelling interest, to censor speech because of the message and/or potential harm it conveys, unless and until there is substantial evidence that non-obscene constitutionally protected speech harms our children, the decision about how our children should be raised and what speech they can hear should be made by parents and teachers not by the state.
Download the article from SSRN here.