We have come a long way since the first historical status of free speech rights for children, presented in Brown v. Entertainment Merchants Assn. In his dissenting opinion, Justice Clarence Thomas stated that, "The concept of total parental control over children’s lives extended into the schools." Thomas quoted Noah Webster, who said, “The government both of fami- lies and schools should be absolute." In other words, initially courts did not give and scrutiny level to cases involving minor’s free speech rights. Schools and parents had the ultimate authority in controlling children, and courts deferred to them. After monumental cases like Tinker v. Des Moines, though, rights of minors were second-guessed. People began to realize that minors’ rights to free speech were being overlooked. Fast forward to today, where we have extreme cases involving minor free speech, like sexting. And what about free speech by adults who use minors as avenues to communication? And nude art? It seems that today, scrutiny levels must be adjusted to fit our international and artistic culture. Today, I will examine two options for levels of scrutiny involving minors, and apply court cases and real-world examples to the practicality of one particular scrutiny level – intermediate scrutiny.
In the landmark 1969 case Tinker v. Des Moines, a group of 15-year-old minors entered their school wearing black armbands in protest of the Vietnam War. In response, the principals of the school banned the use of armbands for protest, but the Supreme Court overruled that, establishing intermediate scrutiny for minors. In other words, the school has to prove that a student is engaged in material and substantial disruption of the educational process before they are punished. As long as order is maintained, like it was for the students in this example, schools have no right to punish speech. It is at this point in my analysis that I would like to point out that simply calling all people under the age of 18 “minors” may be a but too broad of a term. In fact, there are three separate staged of development for “minors:” The pedic stage, which occurs before puberty, the hebic stage, which occurs in early adolescence, and the ephebic stage, which occurs from the age 15 all the way past legal adulthood, into age 21. That being said, limiting a minor’s rights to free speech may be more complicated than limiting one sweeping age group.
These subtleties of age, and of act, lead us to our next (and less preferable) scrutiny level: minimal scrutiny. Minimal scrutiny was first established by the 1986 case of Bethel v. Fraser. A young man gave a rather scandalous and phallus-centered election speech that bordered on sexual innuendo. The boy was suspended and the court upheld the suspension. They ruled that although there should be intermediate scrutiny for most minor speech, the scrutiny level could be lowered to minimal scrutiny for sexual speech. This was a critical decision in differentiating the difference between worthwhile and worthless speech, which we must distinguish for minors, especially. Since this ruling, the Supreme Court has not revisited minor speech, although perhaps it is time, considering our increased international activity, the increasing number of tech-savvy minors in various developmental stages, and the reality that most minors, especially in the hebic stage, will encounter sex speech. Instead of censoring it, we need to encourage positive, well-informed sexual speech among minors, and maintain an intermediate scrutiny level for cases of free speech involving minors in the school system.
Beyond school, though, minors (and adults, on behalf of minors) are finding new ways to express themselves which may taint the land the supreme court drew in the sand with cases like Bethel v. Fraser and Tinker v. Des Moines. First, we can examine how the U.S.’s views may vary with what has been upheld internationally. As an increasingly global society, it is important that we examine these cases to re-evaluate how our court system can work with others, as opposed to against international courts. In the case of The Tin Drum, a German movie that includes a minor engaging in oral sex and intercourse, we have two different views. That of much of Europe and Africa, where ages of consent tend to be much lower, and that of our more strict definitional of minors, usually 16 and over. So how would our courts address movies like The Tin Drum? Originally, in 1973’s Miller v. U.S., The Tin Drum, being a film, would be protected as artistic speech. In 1982’s New York v. Ferber, on the other hand, judges may have the right to freeze-frame movie or commercials to specific parts, using only those frames to make judgments, instead of viewing the whole film. In that case, The Tin Drum may have been seen as pornographic material involving minors and have been banned. What protects The Tin Drum is that in New York v. Ferber and other cases since then, it has been established that there must be a graphic or lewd portrayal of genitalia, and artistic standards also tend to be upheld.
But what about American art? Are people more sensitive to images involving nudity and minors when it is not “European?” What about arguments that minors may not have a voice at the time? What if parents, or adults, are the ones consenting for the children? Does that make it right? This brings us to the modern example of photographer Sally Mann, who uses her own (often nude) children as subjects in her photography. Is that lewd? Is it necessary? Most importantly, is it upheld? According to New York v. Ferber, and later 1990 court case of Osborne v. Ohio, both Sally Mann’s photography and The Tin Drum would be protected because no children were exploited or shamed, and once again the images were not graphic or lewd. Although one may argue that the initial images could be spun, or photo shopped to appear differently, Sally or the directors of The Tin Drum would not be held responsible for that. Although they both walk a fine line, both are protected under current precedents. Sally Mann is also protected with Miller v. U.S.’ claim that nudity can serve as artistic value and is therefore worthwhile, protected speech. In all of the cases thus far, a level of intermediate scrutiny can be applied to both protect worthless speech like that of Matthew Fraser’s, while still protecting speech with artistic value.
What we examine next is when artistic value and lewdness seem to cross paths. Hentai porn would be a good first example. In Hentai, images are lewd and graphic, and since they are cartoons and not depictions of real children (a precedent established in Ashcroft v. The Free Speech Coalition of 2002), they are protected, even if the image crosses lines and becomes both graphic and clearly depicting a minor. At first thought, one (including myself) would want to strike this down and ban Hentai porn, but this case would also strike down verdicts for other (more legitimate) artists like Sally Mann and the makers of The Tin Drum. When it comes down to art, everyone’s tastes will be different, but we cannot just censor something because we don’t like what we see, or create double standards, as we must protect others artists and their right to free speech.
In all of the cases up to this point, we have mainly dealt with adults speaking on behalf of children. But what if it is the children themselves engaging in lewd behavior? What if they are consenting in the behavior? This is where we have to bring up the tricky subject of sexting. Fro those unfamiliar, sexting is the act of sending nude pictures of yourself via electronic device to a willing recipient. In sexting cases, minors are charged with possession of child porn (even if both parties are willing) and convicted as pedophiles. In every other case we have encountered historically, precedents have been established to protect perverse adults from innocent children. But what happens if the children themselves are perverse, and willing participants? In the case of the Lacey, WA teens, strict scrutiny was used, but I would be in favor of changing the court’s current scrutiny level to intermediate scrutiny to protect minors’ speech, even if it is perverse. We must use intermediate scrutiny to differentiate what children do to themselves, versus what adults do to children. What I argue is to amend cases like New York v. Ferber and Osborne v. Ohio, to include a clause that sexual speech among minors (even if lewd or graphic) must be protected if it is between two willing parties. The speech can be unprotected, though, if it is used beyond the owner’s original intent. This way, if a young couple sends each other photos, but later breaks up and the photos are leaked to classmates from an angry ex, the sender can be punished, while still protecting the owner’s rights.
Although sexting is a fairly new example of the blurred line between minors and adults, and free speech versus pornography, we must do everything in our power to maintain intermediate scrutiny levels for minors to ensure that they still grow up in an environment which promotes a healthy dialogue about tough subjects, the least of which being sex.
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