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1: Children’s First Amendment Rights Group Information Rights Kay Mathiesen SIRLS

2: 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

3: Overview Children’s First Amendment Rights Of Expression Limitations on Children’s Rights of Expression Of Access

4: Children’s 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?

5: Children’s 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.

6: Minor’s 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?navby=case&court=US&vol=393&invol=503

7: Limits to Minor’s 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.

8: Minor’s 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-Sem[i]tic, 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)).

9: Limits to Minor’s 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.)

10: Harmful to Minors “[T]hat 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)).

11: 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.”

12: American Library Association Position The ALA’s position is that it is never appropriate to limit a person’s 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.”

13: Some Criticisms of ALA’s 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).

14: 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.

15: 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.

16: 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. Citing an earllier decision with approval, which held.: "While the supervision of children's reading may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society's transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of material to them. Citing an earllier decision with approval, which held.: "While the supervision of children's reading may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society's transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of material to them.

17: References In preparing this lecture, I relied heavily on the Memorandum “Minor’s Rights to Receive Information Under the First Amendment” by Chmara and Mach (http://www.ala.org/Template.cfm?Section=issuesrelatedlinks&Template=/ContentManagement/ContentDisplay.cfm&ContentID=78124).

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