Strengthening Constitutional Self-Government

No Left Turns

Kiddie Porn and Political Speech

In recent years, Congress has passed major legislation restricting 1) pornography on the internet; 2) kiddie porn on the internet; and 3) issues advocacy 60 days before an election--core political speech. The Supreme Court upheld the constitutionality of one of these restrictions, held that one was unconstitutional, and strongly suggested the remaining restriction was also unconstitutional. If you guessed that the ban on political speech was the restriction ruled unconstitutional, you would be wrong -- at least according to Justices Stevens, O’Connor, Souter, Ginsburg, and Breyer. For them, apparently, kiddie porn and internet pornography receives more First Amendment protection than political speech during an election. The whole opinion is 298 pages, affirming in significant part a district court opinion of over 1600 pages, which upheld the 90-page statute, implemented by a 1000 pages of regulations. Somewhere along the way the Court has lost sight of the meaning of "no law," as in "Congress shall pass no law . . . abridging the freedom of speech." Question is: "What are we ordinary citizens going to do about it?"

Discussions - 1 Comment

This seems to reach a different conclusion on the free speech rights of those under 17:

[Eugene Volokh, 11:20 AM]
Children’s First Amendment rights: This is probably the least important part of the Supreme Court’s campaign finance decision; but you’ll surely hear plenty about all the other parts from other sources, so I thought I’d highlight something that you probably won’t hear much about:
[The statute] prohibits individuals "17 years old or younger" from making contributions to candidates and contributions or donations to political parties. . . . Minors enjoy the protection of the First Amendment. Limitations on the amount that an individual may contribute to a candidate or political committee impinge on the protected freedoms of expression and association. When the Government burdens the right to contribute, we apply heightened scrutiny. We ask [as to campaign contributions, which are less protected than pure speech] whether there is a "sufficiently important interest" and whether the statute is "closely drawn" to avoid unnecessary abridgment of First Amendment freedoms. The Government asserts that the provision protects against corruption by conduit; that is, donations by parents through their minor children to circumvent contribution limits applicable to the parents. But the Government offers scant evidence of this form of evasion. Perhaps the Government’s slim evidence results from sufficient deterrence of such activities by §320 of FECA, which prohibits any person from "mak[ing] a contribution in the name of another person" or "knowingly accept[ing] a contribution made by one person in the name of another." Absent a more convincing case of the claimed evil, this interest is simply too attenuated for §318 to withstand heightened scrutiny.

Even assuming, arguendo, the Government advances an important interest, the provision is overinclusive. The States have adopted a variety of more tailored approaches -- e.g., counting contributions by minors against the total permitted for a parent or family unit, imposing a lower cap on contributions by minors, and prohibiting contributions by very young children. Without deciding whether any of these alternatives is sufficiently tailored, we hold that the provision here sweeps too broadly. We therefore affirm the District Court’s decision striking down [the ban on contributions by minors] as unconstitutional.

I haven’t read the opinion, so cannot resolve the apparent inconsistency.

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