Don't Blame Censorship on Children By John J. Walsh, Esq. and Steven G. Brody, Esq.

A trendy tactic of would-be censors is to defend restrictions on advertising as necessary to protect children. This child-welfare argument, while superficially appealing, actually provides no greater latitude for a government to restrict commercial speech, and may provide less. Advocates of censorship are now placing greater emphasis on children because the Supreme Court has rejected many of their other arguments to support special powers for government to regulate advertising for tobacco products, alcohol beverages, and gambling. After Rabin and 44 Liquormart, two decisions that invalidated restrictions on commercial speech concerning alcohol beverages, would-be censors no longer can argue that there exists a category of so-called "vice" products that merits reduced First Amendment protection. In 44 Liquormart, the Court also rejected the argument -- derived largely from its now-superseded decision in Posadas - that government may freely restrict advertising for a product that it purportedly could ban altogether because the "greater power" to ban included the "lesser power" to restrict advertising. As to alcohol beverages specifically, 44 Liquormart unanimously put to rest the notion that the Twenty-first Amendment, which ended Prohibition, somehow gave the states extraordinary powers to regulate advertising for alcohol beverages. Thus the Supreme Court has defused much of the stockpile of weapons that government thought it had to defend restrictions on commercial speech. As a result, advocates of censorship are now attempting to defend their restrictions by exploiting the universal sympathy for the well-being of children. This trend is visible in proposals ranging from the V-chip, to the Communications Decency Act of 1996, to the FDA's restrictions on the advertising and promotion of tobacco products -- all purportedly proposed in the name of child welfare. Protectors of free speech, however, point out that by using other available alternatives, government may readily and without conflict protect both the First Amendment and the well-being of minors.

Rabin v. Coors Brewing Co., 115 S. Ct. 1585 (1995). 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct.1495 (1996). Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S.328 (1986). FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 116 S. Ct. 2374 (1996). Central Hudson Gas & Electric. Corp. v. Public Service Commission of N.Y., 447 U.S. 557 (1980).

But even if there were a good reason to keep certain commercial messages from children, censors who claim to be protecting them would have a major constitutional hurdle to overcome -- the unequivocal right of adults to receive those messages. In our society, where adults and minors are often exposed to the same media, it is difficult to keep commercial information away from children without simultaneously restricting the rights of advertisers and adult consumers to communicate with one another. The Supreme Court, long ago, provided guidance on how to resolve this conflict: The government may not "reduce the adult population . . . to reading only what is fit for children." Nonetheless, would-be censors and their allies may have been emboldened by the Supreme Court's occasional receptivity to arguments concerning children in the context of sexually charged speech. For example, in Pacifica, the Court allowed the government greater leeway to restrict indecent radio broadcasts because of the "government's interest in the 'well-being of its youth' and in supporting parents' claim to authority in their own household." Similarly, in this year's Denver Area decision, Justice Breyer concluded that, under a sufficiently tailored law, adults could be blocked from receiving sexually oriented programming on cable television in order to advance the government's "compelling interest" in protecting children. However, those who seek to limit commercial speech should not take much comfort from decisions arising in the context of indecency. Plainly, there is more social value in truthful commercial messages than in patently offensive depictions of sex. Moreover, it is the patent offensiveness of such speech that further distinguishes it from commercial speech. Whereas there is general consensus that children are harmed simply by being exposed to patently indecent sexual materials, there is no supportable argument that mere exposure to commercial speech is harmful at all to minors. Rather, advocates of restricting commercial speech claim, in a two-step analysis, that the exposure will somehow ultimately cause minors to engage in harmful activity, such as the use of tobacco products. For these reasons, restrictions on indecency and commercial speech cannot be considered analogous. The Supreme Court's greater protection of commercial speech is embodied in the test originally set forth in Central Hudson, and refined and further defined in subsequent cases including last Term's 44 Liquormart decision. The body of commercial speech jurisprudence extant in 1996 does not permit an argument that the Central Hudson test is diluted when a government's asserted purpose for its restriction relates to children. Central Hudson is not a balancing test that allows the relative significance of the asserted interest to alter the government's burden of proof. In all instances, the government must prove in court by a preponderance of evidence that its restriction directly advances its interest to a material degree -- often referred to as the third prong test -- and does so in a manner no more extensive than necessary -- often referred to as the fourth prong. The censorship camp faces an uphill battle in trying to satisfy the third prong. There is no reliable, scientific evidence to support its argument that advertising harms children, or that restrictions on advertising do anything to protect children. More specifically, there is no evidence that limiting or altering advertising would have any impact on underage consumption of "adult" products. Rather, the scholarly literature shows that the primary influences on a minor's decision whether to use such products are parental and peer influence, not advertising. Government also would find it difficult to satisfy the fourth prong when it asserts an interest in the reduction of underage consumption of products such as alcohol beverages or cigarettes. In both Robin and 44 Liquormart, the Supreme Court held that the fourth-prong test is not met when the government can achieve its purpose through non-speech related alternatives. When the government seeks to reduce underage consumption, it will inevitably be confronted with two non-speech related alternatives that are known to work -- educational programs and better enforcement of laws that make it illegal to furnish "adult" products to minors. A government could not deny the availability of educational programs because our compulsory education system transforms minors into a constitutionally permissible "captive audience." If anything, the censorship that has been advocated in the name of children is actually injurious to them in the long run. Free speech makes this nation in which our children live, and which they will inherit, a better place. As the Supreme Court has repeatedly stated, the free flow of commercial information is essential to the efficient functioning of our free market economy. When our children become adults and enter the work force, their ability to engage in unfettered commercial speech will help them to make their own way economically -- a matter of personal dignity with as much significance to many Americans as the day's most urgent political debate. John J. Walsh and Steven G Brody are partners in the firm of Cadwalader, Wickersham & Taft in New York.