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Saving Our Children From the First Amendment By Kevin W. Saunders (New York University Press, 305 pages, $48) Freedom of expression has always been a “be careful what you wish for” proposition. While other constitutional freedoms are tested by the innocent, the disenfranchised, the civil underdog, First Amendment freedoms are tested by Howard Stern, Larry Flynt, Joe Camel, and the Ku Klux Klan. You want free speech, you gotta put up with the worst of it. Yet our society � and our jurisprudence � has decided not to let minors buy pornographic magazines, not to let tobacco companies aim advertising at minors, and not to let 976-LUST ads sponsor afternoon cartoons. This is tricky constitutional law, and reasonable people may disagree about the scope of the First Amendment as it applies to children. Actually, reasonable people must agonize: We cannot simultaneously claim to guarantee a free marketplace of ideas and yet card people at the door for proof of age, and we’re reluctant either to dilute that freedom or to welcome a climate in which children run a gantlet of porn and violence. In Saving Our Children From the First Amendment, Kevin W. Saunders, of the Detroit College of Law at Michigan State University, calls for a codified double standard of freedom for adults and children. It is not only possible, he argues, but also constitutionally feasible � consistent with enduring case law � to deny adults’ unmoderated access to an audience of other people’s children without compromising the libertarian aims of the First Amendment as it applies to fully vested members of society. The key to a two-tiered approach, Saunders maintains, is to devise filters or barriers that restrict only the direct flow of communication from adults to other people’s children; it must be recognized as lawful for minors to access any material their own parents choose to allow them. (Vulgar or hateful speech by minors is a peripheral issue, and Saunders pays brief attention to Hazelwood School District v. Kulhmeier and other limits on expression in public schools.) In a series of cases from Meyer v. Nebraska (1976) to Reno v. ACLU (1997), the Supreme Court leaves no doubt that parents have the right to direct their children’s education. A libertarian corollary is that it is parents’ responsibility, not government’s, to shelter children from unwelcome influences. But the recognition of parents’ rights, Saunders argues, “does not mean that society must leave children at the mercy of all others” whose messages might undermine parental choices. “Children are different” from adults, Saunders explains. “Their abilities to analyze conflicting visions of society are not fully developed. While we may believe that through free and open exchange adults will eventually arrive at the truth, the argument is not as convincing for children.” And the state, therefore, has “the right and duty” to protect children from harmful messages � by holding communication received by children to a different standard than it may hold communication received by adults. Much of Saunders’ argument rests on the 1968 case of Ginsberg v. New York, in which Justice William Brennan Jr. wrote for the Supreme Court majority that “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.” The opinion quoted a Yale Law Journal article from 1963 arguing, more specifically, that “regulation of communications addressed to [children] need not conform to the requirements of the First Amendment in the same way as those applicable to adults.” On that basis, the Court upheld a state law prohibiting the sale of “obscene” magazines to minors. Courts have not, however, applied the same double standard to graphic violence as to graphic sex; in 1992, the 8th Circuit pointedly declined an opportunity to recognize violence as a form of obscenity, or even as a parallel category of unprotected speech. In Video Software Dealers Association v. Webster, the court overturned a Missouri law prohibiting the sale of violent works to minors � works that, echoing established definitions of obscenity, “taken as a whole” lack “serious literary, artistic, political, or scientific value.” The Webster decision did acknowledge the double standard established by Ginsberg, as well as a compelling public interest in restricting children’s exposure to violence. But the Missouri statute was held to be too vague and not narrowly tailored to the state’s interest. Seven years later � after the Columbine massacre � the case was re-enacted on the floor of the House of Representatives, when the Hyde Amendment to the Consequences for Juvenile Offenders Act sought to apply the classic language on obscenity to violent material. The amendment was defeated � “based, at least in major part, on the belief that its treatment of violent material was unconstitutional,” Saunders writes, adding, “Most scholarly commentary agreed.” Violence simply is not considered obscene and is therefore not subject to Ginsberg. Saunders is undaunted on the point: “It is important to note that the Supreme Court has never directly ruled that violent material cannot be obscene or at least regulable. In fact, Winters v. New York specifically left the possibility open,” in 1948, overturning a state restriction of violent material on the grounds that it was too vague � not that it was categorically unconstitutional. In an aside that might not carry much weight with his fellow legal scholars, Saunders explores the etymology of the word obscene and historical notions of obscenity, finding further openings for his contention that violent speech can be construed as obscene and unprotected. The result is not a call for censorship; on the contrary, Saunders takes pains to avoid proposing remedies that would tend to “chill” communication addressed to, and received by, adult audiences. He leans toward the V-chip approach, contriving devices � warning labels, Internet filter tags � that enable distributors to identify material that should not be provided directly to children. Parents remain free to activate Internet filters or not. HIGH-STAKES POLICY These proposals and precedents could easily be mistaken for a moot academic foray into constitutional law, but in fact the subject is a timely matter of public policy and the stakes are high. The book was already on retail shelves when the vice president of the United States made a remark on the Senate floor that might not be deemed fit for underage ears; should the Congressional Record be removed from the open stacks of the school library, accessible only with a signed permission slip from a parent? But innocent ears and delicate sensibilities are not the proximate issue either. Saunders reviews a body of evidence � some scholarly, some anecdotal, but all reasonably compelling � that early and frequent exposure to violent imagery does affect child development. Citing studies that find the average American child witnessing, on television, perhaps 8,000 murders and 100,000 other acts of violence, Saunders writes: “Does media violence lead to aggression and real-world violence? Forty years of study in the passive media � television and film � indicate a positive response,” and video games have not yet been subjected to a comparable body of research. The American Medical Association, the American Academy of Pediatrics, and four other associations representing the mental health profession issued a joint statement in 2000 finding, as quoted by Saunders, “overwhelmingly . . . a causal connection between media violence and aggressive behavior.” The anecdotal evidence is perhaps even more ominous than the studies. The video game Doom and the movie “The Basketball Diaries,” both of which feature first-person vantages of shooting sprees, figured in the experience of the perpetrators of the schoolhouse massacres in Littleton and Paducah. Games similar to Doom are used to train military snipers. And a record label affiliated with several neo-Nazi organizations, Resistance Records, publishes some 250 CDs of openly violent white-supremacist lyrics; the company’s founder describes the music as “highly effective as a recruiting tool.” Resistance Records also sells a video game called Ethnic Cleansing, in which the player, in the guise of a skinhead or Klansman, picks off African-Americans and Latinos while searching for their hidden Jewish masters. That is almost certainly not what the Founders meant to protect � but just as certainly, the Founders would hesitate to chill expression among adults in order to protect children, which in any case is primarily the parents’ job. “Free expression has its costs,” Saunders writes, and drawing that conclusion “is not the same thing as concluding that free expression rights are not worth retaining.” But children are different. Ambitiously, Saunders suggests that a constitutional double standard could actually strengthen free speech guarantees for and among adults. Absent a weaker First Amendment applicable to children, the state will remain under pressure to regulate obscene, violent, hateful, and otherwise offensive material; if the law can accept that children (only) should be insulated from unchecked access to such material, then the adult marketplace of ideas can remain unrestricted. “Recognizing the differences between adults and children would go a long way,” he argues, “to relieving the strain on the First Amendment that, without such relief, could weaken the protection of free expression for adults.” Mike Livingston is a freelance writer based in Takoma Park, Md. He is the lead author of The Newcomer’s Handbook for Washington, D.C. , 3rd edition, published by First Books in 2002. His next book, The Newcomer’s Handbook for the USA , is forthcoming from First Books.

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