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What’s Wrong With Censoring Youth?

Saving Our Children From the First Amendment, by Kevin Saunders (New York: NYU Press, 2003).

Law professor Kevin Saunders’s new book expands the ambitious agenda of his 1996 volume, Violence as Obscenity. In the earlier work, Saunders proposed to outlaw art or entertainment with violent content if it is "patently offensive," lacks "serious value," and appeals to a "morbid or shameful interest in violence." His sequel urges radically diminished constitutional protection not only for violent images and ideas, but for hate speech, vulgarity, and advertising, if they are available to minors.

The courts already accord minors lesser First Amendment rights than adults – especially when the subject matter is sex – but Saunders would go farther. He argues for an across-the-board "rational basis" standard of legal review for any censorship aimed at youth, rather than the "strict scrutiny" that usually applies, and that requires a showing that the particular speech to be censored causes identifiable harm. Saunders knows that the strict scrutiny standard cannot be met for the large categories of speech that he would block from youthful minds. By divesting all this speech of constitutional protection whenever it is made available to minors, Saunders avoids the First Amendment strict scrutiny problem.

Saunders lumps together several quite different perceived evils in his censorship plan. Advertising properly has less First Amendment protection than art, entertainment, or speech about political matters, and its regulation is already subject to a less rigorous standard of judicial oversight than strict scrutiny. Few would quarrel with Saunders’s view that government has a role in regulating advertising that is specifically directed at impressionable children (on Saturday morning cartoon shows, for example).

Racist propaganda resembles advertising in one respect – it is an unambiguous attempt to persuade – and Saunders makes a strong case that white supremacist, anti-Semitic music has the potential to convert at least some disaffected youths into virulent racists. Whether the effect is so direct and pervasive as to justify censorship, or whether a system of hate-speech censorship such as is common in Europe will really reduce racism and anti-Semitism, are separate questions. Saunders finesses them by resorting to his proposed "rational basis" standard of judicial review. In this scenario, it is unclear whether racist epithets are to be off-limits for youth; whether there will be a "serious value" defense for racist works such as D.W. Griffith's groundbreaking silent film, Birth of a Nation; and whether books, movies, and Web sites that deal with Holocaust denial will also be banned.

These definitional questions become even more pressing when we think about Saunders’ two largest targets, violence and vulgarity. These categories of speech are harder to define for censorship purposes than advertising or racist propaganda, and their effects are more difficult to discern. In a short chapter on "The Costs of Free Expression," Saunders relies upon some of the most discredited studies in the media effects field to bolster his argument that violent imagery causes violent behavior. For example, Brandon Centerwall’s claim in a 1992 article that his correlational research showed TV to be responsible for a doubling in homicide rates has been thoroughly debunked.1 In Violence as Obscenity, Saunders gave a more balanced description of Centerwall’s work, but this nuance is dropped in the current volume.

To his credit, Saunders acknowledges critiques of the claims that have been made for proof of widespread imitative effects from media violence – including the critiques of this reviewer. He even allows that some fantasy violence may be cathartic. But then he dismisses these ambiguities by resorting to his proposed rational basis standard of legal scrutiny for censorship affecting minors. Under this standard, it does not matter what empirical evidence shows or does not show – a huge category of creative expression would be restricted because it is not irrational for policymakers to think it might be harmful.

The argument for harm becomes even more dubious when Saunders gets to vulgarity – what he calls the "coarsening of society." Here, using the term "harm" is completely misplaced. The "coarsening of society" is entirely a matter of taste, and talk of harm is a poor substitute for the real social interest that Saunders expounds: teaching minors standards of politeness and civility.

If defining the speech Saunders wants to censor turns out to be difficult, constructing the censorship apparatus is a logistical nightmare. Saunders offers a few proposals for how censorship of youth might work in a society where children are not raised in closed containers, and every effort at suppression runs the risk of reducing the adult population to reading and viewing only what is deemed appropriate for children. But his proposed censorship schemes are problematic.

For example, the Federal Communications Commission currently has the power to censor "indecency" on radio and broadcast television. Saunders would extend this and have government ban "sales to children of CDs [or videos] with offensive or indecent language." He even suggests criminalizing the language on the famous "Fuck the Draft" jacket worn by Paul Cohen to protest the Vietnam War, if the malefactor knowingly wears the jacket in the presence of children.

But our recent history suggests the danger of giving government officials the power to impose their standards of taste or decency on any speech that minors might see or hear. Their judgments are usually conservative, conventional, and dismissive of radical or minority styles, as indecency findings against Pacifica radio over the years, and more recently against the feminist rap artist Sarah Jones, make clear.2 Like Jones’s rap song "Your Revolution" and George Carlin’s famous "seven dirty words" monolog, Paul Cohen’s jacket was core political speech – and very relevant speech for those approaching draft age.

Turning to the logistics of censoring youth online, Saunders proposes an expansion of the "PICS" (Platform for Internet Content Selection) voluntary rating scheme that would criminalize any Internet speech deemed inappropriate for minors (including not only sexual material but "profane language" and "Internet hate speech"), if the speaker or publisher does not "self-rate" so that the material can be electronically blocked from youthful eyes. Even apart from the chilling effect this would have on Web speakers who do not wish to self-identify as purveyors of "harmful" expression, the definitional problems remain – whether the material in question includes the raunchier parts of James Joyce’s Ulysses, the graphic violence in Saving Private Ryan, George Carlin’s hilarious monolog, Shakespeare’s bloody Titus Andronicus, or countless other examples.

It is easy to make light of Saunders’s proposals, with their massive definitional and logistical problems. I do not mean to do so. His sincerity is genuine, and he is responding to widespread concerns about what are probably real – if unprovable – ill effects on youth from overdoses of popular culture. But as I have argued elsewhere (see, e.g., Not in Front of the Children), censorship provides only symbolic relief from these concerns. It neither teaches youngsters the lessons that Saunders and many others want to teach (civility, nonviolence, racial tolerance, sexual restraint), nor helps them mature into critically thinking adults.

It remains, however, a seductive distraction from the more difficult, costly, and long-term educational approach to concerns about media effects. And, as Saunders’s new book suggests, it offers attractive publishing opportunities for legal academics.

Marjorie Heins
April 19, 2004

This review was commissioned for the Freedom Forum First Amendment Center's Book Review Web site, and is published courtesy of Freedom Forum First Amendment Center.

For a reply by Kevin Saunders, click here.


1. Brandon Centerwall, "Television and Violence: The Scale of the Problem and Where to Go From Here," 267(22) J.A.M.A. 3059 (1992). See the Brief Amici Curiae of 33 Media Scholars in Interactive Digital Software Ass'n v. St. Louis County, text accompanying notes 25-26; Marjorie Heins, Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth (NY: Hill & Wang, 2001), p. 246.

2. See The Strange Case of Sarah Jones.

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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