In a 2011 case, Brown v. Entertainment Merchants Association, the Supreme Court struck down a California law banning the sale of violent video games to minors. The 7-to-2 decision featured three Democratic appointees joining with four Republican appointees. Justice Antonin Scalia, writing for the majority, reaffirmed that “minors 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.”
The state certainly has power to protect children from harm — as laws restricting children’s’ access to alcohol and tobacco attest — but that power “does not include a free-floating power to restrict the ideas to which children may be exposed,” the majority opinion said. Consequently, as the court has repeatedly observed, “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.”
Lawmakers and parents may find this doctrine frustrating, but there is a genuine method to the free-speech madness, even for children. In a free-speech case from 1982, Island Trees School District v. Pico, Justice William Brennan cast doubt on a public school district’s effort to remove “improper” books from library shelves and wrote powerfully in support of student free speech and students’ access to ideas. “Just as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner,” Brennan argued, “such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.”
Justice Brennan is exactly right. We can’t shelter children from debate and dialogue and then expect them to emerge in college as grown-ups, ready for liberal democracy. Raising citizens in a flourishing republic is a process, one that isn’t susceptible to one-size-fits all bans on speech and expression, even if that speech or expression poses social and emotional challenges for today’s teens.
Compounding the problem, social media bans are almost always rooted at least in part in the content on the platforms. It’s the likes, comments, fashions, and trends that cause people to obsess over social media. Yet content discrimination is uniquely disfavored in First Amendment law. As the Supreme Court has repeatedly explained, one of the most basic First Amendment principles is that “as a general matter, the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”