Children and the First Amendment

Children hold rights under the First Amendment Speech Clause, but these rights may provide less protection than adults hold. Leading Supreme Court decisions have arisen in the public schools. Tinker v. Des Moines Independent Community School District (1969) held that ‘‘[s]tudents in school as well as out of school are ‘persons’ under our Constitution,’’ and do not ‘‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’’ Bethel School District v. Fraser (1986), however, stated that ‘‘the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.’’ Hazelwood School District v. Kuhlmeier (1988) stated that students’ constitutional rights ‘‘must be applied in light of the special characteristics of the school environment.’’

The Speech Clause may also protect children more than adults. Ginsberg v. New York (1968) upheld a statute that prohibited sale to minors of material defined as obscene based on its appeal to children, even where the material would not be obscene for adults. New York v. Ferber (1982) held that the Clause does not protect production and dissemination of nonobscene child pornography—‘‘depictions of sexual activity involving children.’’ Osborne v. Ohio (1990) held that states may prohibit private possession and viewing of child pornography (even in one’s own home), without proof that the possessor intended to distribute the material. Ashcroft v. Free Speech Coalition (2002), however, invalidated legislation relating to computer-generated materials that seem to depict minors but are produced without using actual children.

DOUGLAS E. ABRAMS

References and Further Reading

  • Abrams, Douglas E., and Sarah H. Ramsey. Children and the Law—Doctrine, Policy and Practice. 36–52, 643–655, 2nd ed., St. Paul, MN: Thomson West, 2003.
  • Sullivan, Kathleen M., and Gerald Gunther. Constitutional Law. 1114–1120, 1294–1303, 15th ed., New York: Foundation Press, 2004.

Cases and Statutes Cited

  • Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
  • Bethel School District v. Fraser, 478 U.S. 675 (1986)
  • Ginsberg v. New York, 390 U.S. 629 (1968)
  • Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
  • New York v. Ferber, 458 U.S. 747 (1982)
  • Osborne v. Ohio, 495 U.S. 103 (1990)
  • Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)

See also Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); Balancing Approach to Free Speech; Child Pornography; Freedom of the Press: Modern Period (1917–Present); Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988); In re Gault, 387 U.S. 1 (1967); New York v. Ferber, 458 U.S. 747 (1982); Osborne v. Ohio, 495 U.S. 103 (1990); Prior Restraints; Public Forum Doctrines; Public/Nonpublic Forums Distinction

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