Freedom of Speech, Shielding Children, and Transcending Balancing

Abstract

The Court has long accepted that the government has a strong interest in shielding children from speech that's supposedly unsuitable for them, for instance speech that's sexually explicit or profane. But the Court has also long accepted that such speech does have substantial First Amendment value. The question thus becomes: How is the Court to reconcile the strong claim of government interest with the strong claim of First Amendment right? The conventional answer, which the Court followed in the recent cyberspace indecency case (Reno v. ACLU), is that the court must apply "strict scrutiny" -- must uphold the law if and only if it's the least restrictive means of serving the government interest. In this article, I make four claims: 1. Though the Court's result in Reno was right, its application of strict scrutiny was less than candid. 2. Under a more accurate application of strict scrutiny, the Court might well have had to uphold the Communications Decency Act. In my view, this suggests that strict scrutiny is itself an unsound test for such cases. 3. There are several different alternatives for dealing with speech restrictions aimed at shielding children; the best one is probably something analogous to the Court's "undue burden" (or, more precisely, "substantial burden") test. 4. This criticism of the Court's "strict scrutiny" approach also applies to other kinds of speech restrictions. Strict scrutiny is generally an unsound approach to free speech cases; I offer some suggestions for a possible framework to replace it.