Despite doctrinal requirements that the state establish a compelling interest to justify content-based regulations on speech, Professor Ross argues that courts have routinely taken the government's interest at face value when it argues that it inhibits speech to protect children. The Article examines the Supreme Court's test which requires the state to establish a compelling interest by articulating the precise harm it wishes to address, demonstrating a nexus between that identified harm and the regulated speech, and showing that restriction of the speech will alleviate the harm. The author seeks to reframe the discussion surrounding controversial speech and children by calling on courts to scrutinize the interest asserted by the government.
This Article examines the two compelling interests on which the government relies in justifying its efforts to shield children from controversial speech: an interest in reinforcing parental authority and an independent state interest in protecting children from material the government deems unsuitable. The author finds both arguments fatally flawed. Drawing on the literature of family law, Professor Ross offers a heuristic device for measuring the potential of regulations on speech to empower parents. She divides families into three categories: the "idealized normative family," the "imperfect normative family," and the "nonconformist family," which itself manifests a wide range of values. She then demonstrates that no regulatory scheme can accommodate the range of constitutionally protected parental preferences in all three types of families. The state's purported independent interest in shielding children from speech fares no better. In case after case, the government has failed to articulate any specific harm to children that would support such an independent interest, much less the required nexus between the speech and the harm.
Even if proponents of particular regulations on speech were to succeed in meeting their burden of proof to demonstrate a compelling interest, a close question would still be presented, as the handful of lower court opinions that have expressly considered the government's asserted interest make clear. Then, and only then, would courts properly analyze whether the specific regulation survives balancing of competing constitutional interests and is narrowly tailored. Because the private market offers numerous mechanisms to respond to a range of parental preferences, it is unclear that government regulation would be necessary to alleviate demonstrable harms, much less the least restrictive alternative, in all but the narrowest of cases.
GW Paper Series
GWU Legal Studies Research Paper No. 340; GWU Law School Public Law Research Paper No. 340
Catherine J. Ross, Anything Goes: Examining the State's Interest in Protecting Children from Controversial Speech, 53 Vand. L. Rev. 427 (2000).