Supreme Court's Reno Decision Undermines Governmental Tactic of Playing the 'Kid Card'

By John J. Walsh and Steven G. Brody

Although Reno did not directly involve commercial speech, its broad teachings should undermine a key element of the new governmental strategy in the commercial speech area.

In particular, the federal government has been attempting to construct a lower tier of constitutional protection for commercial speech that concerns age-restricted products or services, such as alcohol, tobacco, and gambling. The feds achieved some early success with this effort, but have been handed a major setback in Reno.

The federal government first played the “kid card” aggressively in the Baltimore billboard litigation in the Fourth Circuit. At issue were Baltimore’s companion ordinances banning “publicly visible” advertising of cigarettes and alcohol beverages.

The feds stepped in after the Supreme Court had vacated the Fourth Circuit’s decisions upholding the ordinances, and had remanded those decisions for reconsideration in light of 44 Liquormart. In July 1996, the United States submitted an amicus brief on the remand that raised an argument not previously urged by Baltimore’s counsel.

Throughout the litigation, Baltimore had claimed that the purpose of its ordinances was to reduce underage consumption of alcohol and tobacco, but it had never argued that an asserted interest in protecting children should alter the First Amendment inquiry.

That theory first appeared in the brief of the United States. Department of Justice lawyers relied on a string of indecency cases for the proposition that “it is entirely legitimate under the First Amendment for the government to act ‘paternalistically’ in order to protect children.”

Unfortunately, the Supreme Court declined to review Judge Niemeyer’s decisions and so the federal government was emboldened to pursue its “special solicitude” theory in other areas.

For example, the federal government is currently defending challenges in several courts concerning its ban on broadcast advertising for non-Indian casino gambling. But it was not until after the remand decision in the Baltimore cases that the Justice Department lawyers started claiming that the ban serves to protect children.

In the Players International case in the U.S. District Court for New Jersey, the federal government argues on its pending motion for summary judgment that its ban will not only protect children from the ills associated with having parents who are compulsive gamblers — but will even reduce compulsive gambling among children themselves! Apparently, the feds thought they had found a winning horse and were going to ride it as far as it would take them.

The Reno decision should rein in the government’s argument that commercial speech rights are reduced where children are concerned.

In Reno, the Court struck down provisions of the Communications Decency Act of 1996 (the “CDA”) that restricted the transmission of indecent materials over the Internet. Like bans on advertising for age-restricted products, the invalidated provisions of the CDA purportedly were designed to protect minors from messages intended for adults.

That similarity was not lost on The Media Institute and the Association of National Advertisers, who submitted an amicus brief to sensitize the Court to the precedential impact that Reno could have on commercial speech rights.

As is turned out, two of the principal holdings in Reno are easily transferable from the indecency context to the commercial speech context. First, the Supreme Court rejected the argument that a government’s assertion of an interest in protecting children reduces its burden of proof to justify a restriction on speech:

“It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. ... But that interest does not justify an unnecessarily broad suppression of speech addressed to adults.”

That holding underscores the error of Judge Niemeyer’s decision in the Baltimore cases, which relied heavily on the now clearly mistaken notion that the Supreme Court gives “special solicitude” to restrictions on speech that purportedly protect children. Second, the Supreme Court in Reno emphasized that in our constitutional system, parents, not government, are entrusted with the primary responsibility for supervising the exposure of children to various types of speech.

The Court quoted an earlier decision to stress that “[i]t is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”

Various proposed laws to restrict commercial speech would similarly usurp the role of parents in deciding how to educate their children about products, services, and speech directed to adults.

For this additional reason, the Reno decision makes plain that governmental censorship for the paternalistic purpose of protecting children runs contrary to our constitutional traditions.

Notwithstanding Reno, the feds may still try to play the “kid card” in the commercial speech area. If they do, the Reno decision should provide a powerful precedent — perhaps even a trump card — in favor of commercial free speech.

Reno v. ACLU, 929 F. Supp. 824 (E.D. Pa. 1996), __ U.S. __, __ S. Ct. __ (No. 96-511).

Anheuser-Busch, Inc. v. Schmoke, 116 S. Ct. 1821 (1996), reaff’d, 101 F.3d 325 (4th Cir. 1996), cert. denied, 117 S. Ct. 1569 (1997).

Penn Advertising of Baltimore, Inc. v. Schmoke, 116 S. Ct. 2575 (1996), reaff’d, 101 F.3d 332 (4th Cir. 1996), cert. denied, 117 S. Ct. 1569 (1997).

44 Liquormart, Inc. v. Rhode Island, 517 U.S. __, 116 S. Ct. 1495 (1996).

Players International Inc. v. United States, Civil Action No. 96-4911 (D.N.J. 1997).