The Child Paradox in First Amendment Doctrine

November
2012
Yotam Barkai

Courts have increasingly scaled back children’s First Amendment rights and deferred to schools’ fear of disruption; today, children face discipline for even off-campus expression. Meanwhile, in the name of others’ free speech rights, the Supreme Court has discounted the state’s claimed interest in children’s welfare and has repeatedly rejected restrictions on third parties’ abilities to approach children with sexually explicit, commercial, and violent speech. These dueling trends have created a paradox: Although First Amendment principles indicate that children’s ability to speak is more important than their access to others’ speech, the doctrine errs in the wrong direction and protects speech to children more strongly than it protects children’s own expression. Therefore, the Court should both allow for greater government restrictions on speech to children and more strongly protect children’s speech rights, especially outside school. This modified doctrine would be more sensitive to the government’s regulatory interest in children and to the principles behind the First Amendment.

This article appears in the November 2012 Issue: Volume 87, Number 5