The Volokh Conspiracy

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Posner v. Posner on "granting rights of free speech to school kids"


Ron Collins's extensive and revealing interview of Judge Richard Posner continues at Concurring Opinions— today it's on free speech. (Here's my previous post.)

Here's one exchange that struck me:

Question: You pride yourself on being a "balancer," as one who compares the social pluses and minuses of restrictions on free speech. Can you be an effective balancer absent a reliable record of the actual or even conjectural harms and benefits of speech? And what if the lawyers, as if often the case, tender no reliable empirical evidence one way or the other? Who wins, where is the conceptual default? Or must the reviewing court do its own research to resolve the question?

Posner: I don't know how much empirical work has been done on the subject. In its absence, there is just guesswork, although the basic structure of American free speech law seems okay. Some of it strikes me as silly, notably granting rights of free speech to school kids.

Why did the last line strike me? Because of a very succinct and interesting defense of the free-speech rights of children that I remember reading in college—by Judge Posner. Here it is:

Children have First Amendment rights.  Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-14 (1975);  Tinker v. Des Moines Independent School District, 393 U.S. 503, 511-14 (1969).   This is not merely a matter of pressing the First Amendment to a dryly logical extreme.   The murderous fanaticism displayed by young German soldiers in World War II, alumni of the Hitler Jugend, illustrates the danger of allowing government to control the access of children to information and opinion.   Now that eighteen-year-olds have the right to vote, it is obvious that they must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise.   And since an eighteen-year-old's right to vote is a right personal to him rather than a right that is to be exercised on his behalf by his parents, the right of parents to enlist the aid of the state to shield their children from ideas of which the parents disapprove cannot be plenary either.   People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.

That's Judge Posner's opinion for the Seventh Circuit in American Amusement Machine Association v. Kendrick, a case about violent video games that was later cited by the Supreme Court when it reached a similar conclusion, and is mentioned in the introduction to the interview.

Now it could well be that Judge Posner's views here are all consistent—he does say "school kids" in the recent interview (emphasis mine). And although he doesn't spell any of this out, it could be that he has in mind a specific skepticism about the value of free speech rights at school, while kids presumably play video games elsewhere. But in any case I thought it was worth providing the context of his earlier analysis.