Harmful to Minors

Government may regulate speech to promote a compelling state interest. Protecting minors’ physical and psychological well-being is such a compelling interest, and most states have statutes regulating material deemed “harmful to minors.” However, even regulations enacted to protect children must satisfy the requirement that they employ the least restrictive means to achieve that goal. Among other things, this guards against using a child-protection rationale as a pretext, and protects the rights of adults to access material that is considered unsuitable for minors.

Recently, the Communications Decency Act (CDA), which was enacted with the express purpose of protecting children from indecent online communications, was held to violate the First Amendment. The Supreme Court criticized the ambiguous reach of the law, and found there was a less restrictive means of protecting minors: parental controls and filtering software. The Court said CDA would have had a chilling effect and would be an outright impediment to the exercise of many adults’ First Amendment rights. The Court stated, “we have repeatedly recognized the government interest in protecting children from harmful materials. …But that interest does not justify an unnecessarily broad suppression of speech addressed to adults…. ‘[R]egardless of the government’s interest’ in protecting children, ‘[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.’” (Reno v. ACLU)

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