William & Mary Bill of Rights Journal
What if I Want My Kids to Watch Pornography?: Protecting Children from "Indecent" Speech
Under current First Amendment doctrine, a law directed at indecent speech is treated as "content-based" regulation of speech, and thus must satisfy the "strict scrutiny" test to survive constitutional challenge - the regulation must be narrowly tailored to advance a compelling state interest. A number of laws regulating indecent speech have been passed in recent years, and when challenged, the government has defended these regulations on the ground that the State has a compelling interest in the protection of children from harmful materials. Underlying this argument, however, is a deep ambiguity regarding the precise nature of the government's legitimate objectives in this area. While the government may have an interest in facilitating parental supervision over their children's access to indecent speech, some courts have found the government to have an independent interest in restricting minors' access to indecent materials. In this Article, Professor Bhagwat explores the nature of the government's interest in protecting children from indecent speech. He argues that the existence of such an independent interest is relevant to the constitutionality of statutes regulating indecent speech - as opposed to those that merely enhance the effectiveness of parental supervision - and he criticizes the Supreme Court's failure to develop a coherent theory or approach to evaluating governmental interests.