Speech That Can Be Seen by Children — Sexually Themed and Otherwise

My blog posts about Scott v. Saint John’s Church in the Wilderness led readers to ask about the cases that allow the government to limit the exposure of children to sexually themed speech. Here’s what the petition for certiorari says about those cases; the discussion is necessarily brief, because the point of the petition is to argue that the case is worth the Court’s consideration — if the Court agrees to hear the case, then the merits briefs will discuss this in more detail:

Though sexually-themed speech has long been seen as less protected for minors than other speech is, see Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2735-36 (2011); Ginsberg v. New York, 390 U. S. 629 (1968), this Court has nonetheless held that even material that many might see as unsuitable for minors — large, full-color, moving depictions of nudity on a drive-in screen — may be publicly displayed where minors can see it. Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). Even such obtrusive images are constitutionally protected unless the nudity is so pornographic and lacking in serious value that it fits within the “obscene-as-to-minors” exception set forth by Ginsberg. A fortiori, speech that has serious political, moral, and religious value for minors and that is not sexually themed must be at least as constitutionally protected as nudity on drive-in screens, even where children can see it.

Likewise, in Brown, this Court specifically rejected a call to carve out a special First Amendment rule for speech to children. The government in that case sought to uphold a ban on the distribution of violent video games to children, by analogy to limits on the distribution of sexually themed material to children. Brown, 131 S. Ct. at 2734. This Court, though, struck the ban down.

The government’s attempt to “create a wholly new category of content-based regulation that is permissible only for speech directed at children,” this Court held, was “unprecedented and mistaken.” Id. at 2735. “‘[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.’” Id. (quoting Erznoznik, 422 U.S. at 212-13). And the government’s “legitimate power to protect children from harm” “does not include a free-floating power to restrict the ideas to which children may be exposed.” Id. at 2736. “‘Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.’” Id. (quoting Erznoznik, 422 U.S. at 213-14). Again, a fortiori, what is true for violent video games must be at least as true for “images” that directly bear on political, moral, and religious debate, even when the government believes those images are “unsuitable” for minors.

As you can tell, the Brown v. Entertainment Merchants Ass’n case is very helpful to us here, because there California deliberately tracked the Ginsberg v. New York “obscene-as-to-minors” test, but tried to broaden it beyond sexual depictions to depictions of violence; the Supreme Court majority rejected that analogy, so we argue that it should likewise reject it here. And this was so even though Brown, like Ginsberg, involved speech distributed directly to individual minors; in our case, the injunctions limits speech that can be seen by adults as well as minors.

Note that none of this is to endorse the Court’s sexually themed speech cases. One can debate whether those cases are sound or not, but they are precedents, and the Court seems unlikely to want to change them. Our petition takes them for granted, but argues — given Brown — that they cannot apply to display of non-sexually-themed images as part of a political, religious, or moral debate.

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