Freedom's Orphans: Contemporary Liberalism and the Fate of American Children by David L. Tubbs

Author:David L. Tubbs [Tubbs, David L.]
Language: eng
Format: epub, pdf
Tags: History & Theory, Political Ideologies, Comparative Politics, Civil Rights, Political Science, Conservatism & Liberalism
ISBN: 9781400828074
Google: fB-_3i2K52EC
Goodreads: 10162819
Publisher: Princeton University Press
Published: 2007-07-09T00:00:00+00:00

CHAPTER FOUR

Conflicting Images of Children in First Amendment Jurisprudence

THE SUPREME COURT’S invention of a broad right to sexual freedom and its failure to discuss any responsibilities attendant upon its exercise show that jurists as well as political theorists can adopt a morally reticent outlook on matters of great public consequence. The analysis in the last chapter also raises questions. We might ask, for example, whether the Court has been justified in constricting the police power in other cases, especially when the law was used to advance other interests of children.

In this chapter, I examine some legal controversies in which the interests of children are more conspicuous than they were in the cases involving the “right to privacy.” My goal is to document a curious inconsistency in the characterization of children in different First Amendment cases. For reasons that are intelligible—though, in the end, hard to justify—the Supreme Court sometimes characterizes children as morally and psychologically fragile, and at other times depicts them as essentially indistinguishable from adults. These characterizations have, predictably, affected the outcomes in some cases.

What accounts for this inconsistency? I shall argue that the conflicting images are related to different ideas about freedom espoused by some of the justices. The point will soon become clear, but an overview of the relevant constitutional issues is first necessary.

In the contemporary era, some critics have faulted the Court for mandating “strict separation” between church and state and for adopting a highly permissive standard for obscenity. The decisions in Engel v. Vitale, Lemon v. Kurtzman, and Miller v. California provoked much debate, but unlike the “right to privacy,” these cases involve explicit constitutional provisions, rather than unenumerated rights. Those provisions are found in the First Amendment, which reads: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.”1

The rulings in some First Amendment controversies have affected children and educational policy throughout the country. In Abington School District v. Schempp, the Warren Court held that the daily reading of ten biblical verses in the Pennsylvania public schools was unconstitutional.2 More recently, in Reno v. American Civil Liberties Union, the Rehnquist Court invalidated the Communications Decency Act, which criminalized the “knowing transmission” of indecent stimuli to a minor over the Internet.3

To understand these controversies more fully, we must review the origins and history of the First Amendment. Despite their differences on many matters of interpretation, nearly all scholars agree that the words “shall make no law” were originally meant to bind only Congress. State legislatures were free to restrict speech and establish a religion, provided that such policies were consistent with their own constitutions. At least four states had established churches when the Bill of Rights was ratified in 1791, and obscenity prosecutions occurred regularly in state courts for much of the nineteenth and twentieth centuries.4

The Supreme Court confirmed that the Bill of Rights applied only to actions of the federal government in Barron v. The Mayor and City Council of Baltimore and Permoli v.

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