The freedom to speak one’s mind free of persecution has long occupied a place of particular gravity in American culture. At its core is the idea that government cannot control our access to certain ideas by restricting some messages but not others—it prohibits government from discriminating against content. To be workable, however, this right must acknowledge exceptions, and it does so by allowing discrimination against certain types of speech to bypass this strict First Amendment protection. So while the Supreme Court prohibits discrimination of most content, there are a few types of speech, such as libel or incitement, that receive more lenient treatment. Accordingly, to determine the level of protection, judges must look to the type of speech in question, an approach that forms the fundamental framework for content-discrimination analysis.
In a recent case, United States v. Stevens, the Court established a clear standard for such categorization, declaring it would recognize exceptions only for speech that had a firm tradition of regulation. Despite its focus on tradition, the Stevens opinion provided little guidance as to whether this held true when children were the recipients of the speech, in which case speech receives lesser protection. Yet because the Court never precisely outlined these differences, it was uncertain whether Stevens’s requirement of traditional regulation applied in all contexts of speech categorization, or whether categories could sometimes deserve formal recognition without satisfying this fairly strict requirement. On occasion, First Amendment analysis can change depending on its setting, medium, or audience. So, it seems at least plausible that such situations might be exempt from the full impact of Stevens.
Indeed, this was the complication in Brown v. Entertainment Merchants Ass’n, where the Court faced a statute limiting the sale of violent video games to minors. The Court had to determine whether such speech deserved recognition as a formal category, exempted from full First Amendment protection. Without a clear answer from the young Stevens opinion, the initial dividing point was simply whether the fact of a child audience deserves special merit when considering the recognition of a new category, or whether such speech must have a tradition of regulation, as generally mandated by Stevens. There, the Court fractured in its application of Stevens. While the majority straightforwardly applied the case without so much as a second glance, Justice Alito disagreed, suggesting New York v. Ginsberg supplied the standard more appropriate for speech toward children.
Ginsberg stands as an example of speech receiving lessened protection when children are involved, so Justice Alito’s choice raises the interesting possibility of an exception from the Stevens requirements for recognizing a speech category. Although the majority rebutted some of Justice Alito’s attacks, it gave little discussion as to why Ginsberg, a case dealing with treatment of speech directed at children, was inapplicable in a case involving speech directed at children. Justice Alito similarly fails to explain, in his critique of the majority, why it really is the appropriate case or how it fits the analysis. In light of this underexplored disagreement, this Note examines that possibility and its ramifications in more depth and supports the majority’s decision, at least in terms of jurisprudential harmony, to avoid the reasoning in Ginsberg. In Part II, this Note examines First Amendment jurisprudence, focusing particularly on the method of categorizing speech and the Court’s past treatment of speech toward children. In Part III, the discussion turns to the possibility of using the Ginsberg decision as precedent, analyzing whether and how such reasoning could apply as an exception to the method established in Stevens. The resulting standard would likely be a rational basis test creating a significant difference from standard categorization methodology. The Court’s past treatment of children, however, shows such a large difference to be unwarranted.
Erick D. Reitz,
Children and Categorization: Maintaining a Standard for Recognizing Speech Categories in Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011),
91 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol91/iss4/7