Protection of minors

The Supreme Court has long recognized that the “well-being of its children is of course a subject within the State’s constitutional power to regulate” and upheld content-based restrictions on speech &mdash; including complete bans on children’s access to certain material &mdash; that would not survive constitutional scrutiny if applied to adults. These content-based restrictions are primarily aimed at constitutionally protected “indecent” material. In such cases, the courts have not required the government to demonstrate to a scientific certainty that the speech at issue causes harm to minors.

Nonetheless, the government’s interest in protecting children does not always outweigh the First Amendment considerations involved. The Supreme Court has struck down a regulation requiring cable operators either to scramble sexually explicit channels in full or to limit programming on such channels to certain hours, as well as a statute criminalizing the knowing transmission of obscene or indecent messages to minors over the Internet, on “overbreadth” grounds because they infringed on adults’ First Amendment rights. The Supreme Court has repeatedly emphasized that regardless of the government’s interest in protecting children, it may not “reduce the adult population. . . to. . . only what is fit for children.” “ ‘Regardless of the government’s interest’ in protecting children, ‘the level of discourse reaching a mailbox cannot be limited simply to that which would be suitable for a sandbox.’ ”