Protecting Children and Free Speech
Angela J. Campbell

When advocates seek regulation to protect children from excessive or unfair marketing practices, they frequently hear the objection that such regulation violates the First Amendment’s guarantee of free speech. Such arguments make it difficult to get regulations adopted. And even if such regulations are ultimately adopted, they run the risk of being overturned by the courts.

This presentation will summarize the state of the law with respect to advertising and children. The First Amendment protects one of our most cherished rights -- freedom of speech.

At the outset, it is important to note that the First Amendment only applies where the government is involved. So efforts by private citizens to educate the public about the dangers of commercialism, or attempts to get advertisers to change their practices are not limited. Nor are efforts by industry to “self-regulate.”

Government regulation affecting speech is subject to different types of “tests” for constitutionality. Generally, regulations that are intended to ban speech or restrict speech because of its content are subject to a test known as “strict scrutiny” that asks whether the restrictions are the least restrictive means of achieving a compelling governmental interest. In virtually all cases, such regulations are found unconstitutional. Regulations that are intended to regulate something other than speech but that may have in impact on speech, such as zoning regulations, are subjected to “intermediate scrutiny.” Under this test, a regulation can be constitutional if it is narrowly tailored to serve a substantial governmental interest. This is not an easy test to meet and whether such a regulation survives scrutiny depends on a variety of situation- specific factors. In addition to applying these basic tests, courts often examine whether a regulation is unduly vague or overly broad. Both of these doctrines are concerned that regulations not have a chilling effect on speech that is not prohibited.

Within this framework, however, there are a variety of exceptions and anomalies. Three are particularly important here. First, commercial speech is subject to a different test than other types of speech. Second, speech targeting children is subject to somewhat different analysis than speech directed at adults. Finally, restrictions on broadcast speech are analyzed differently than speech on other media.

This presentation will explore how these doctrines and exceptions might apply to proposals directed a limiting marketing to children and suggest ways that we can protect children without running afoul of the First Amendment’s guarantee of free speech.

ANGELA J. CAMPBELL, JD (campbeaj@law.georgetown.edu) is a Professor at Georgetown University Law Center, where she has directed the Citizens Communications Center Project of the Institute for Public Representation for seventeen years. She represents children’s advocates in proceedings before the Federal Communications Commission and the Federal Trade Commission. She has also published several articles on children’s media law.