Vol. 12 No. 7 (July 2002) pp. 336-338

NOT IN FRONT OF THE CHILDREN: “INDECENCY,” CENSORSHIP, AND THE INNOCENCE OF YOUTH by Marjorie Heins. New York: Hill and Wang, 2001. 402 pp. Cloth $30.00. ISBN: 0-3741-7545-4. Paper $15.00. ISBN: 0-8090-7399-4.

Reviewed by John C. Blakeman, Department of Political Science, Baylor University.

Marjorie Heins’ book NOT IN THE FRONT OF THE CHILDREN tackles the morass of obscenity law and policy from the standpoint of the “harm-to-minors” argument that can so often dominate discussions about whether, and to what extent, obscene materials should be banned. The harm-to-minors standard advises that children must be protected from certain materials and information that might be psychologically harmful. As Heins shows, the standard tends to pop up in judicial decisions regulating obscenity, and it seems as if judges often use the standard as a crutch to sustain censorship of certain types of materials. To be sure, Heins does not advocate that children have access to pornography. Instead, “given the overwhelming difficulty in even defining what it is we want to censor, and the significant costs of censorship to youngsters themselves, we ought to be sure that real, not just symbolic, harm results from youthful pursuit of disapproved pleasures and messages before mandating indecency laws, Internet filters, and other restrictive regimes” (p. 11).

As the Hill and Wang press release with the book indicates, “clearly more serious and dispassionate conversation is needed.” True to the press release, Heins’ work provides a fairly dispassionate, and indeed serious, conversation about how and why we regulate works that are indecent and obscene in order to protect children. As a First Amendment lawyer who currently directs the Free Expression Policy Project at the National Coalition Against Censorship, Heins clearly has a command of First Amendment law and policy that makes her discussion compelling. Thus, it is not surprising when she comments that “the history of the harm-to-minors censorship is, by and large, a legal history” (p. 9). Her main point, though, is not to recap the history of obscenity law. Instead, it is to dispute the basis for arguments in favor of protecting children and youth from harmful materials. Most arguments that mandate restrictions on what children can view and read are based on non-scientific, nebulous ideas that exposure to indecency and obscenity—however we choose to define those two terms—necessarily results in harm to minors.

As she traverses the history of obscenity and indecency laws, primarily from the 19th century to the present, Heins places her observations into the lens of the harm-to-minors standard. Thus, she addresses the rise and fall of the Hicklin test of obscenity from REGINA V. HICKLIN, the prevalence of Comstock laws and policies, and the increasing attention of judges—especially federal judges—to issues of obscenity and indecency. Along the way she explores how the harm-to-minors standard became entrenched in obscenity law with no real questioning by judges about whether minors were actually harmed by

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obscenity at all. Interestingly, with cases such as COHEN V. CALIFORNIA and TINKER V. DES MOINES, it seemed as if federal judges and even the Supreme Court were becoming attentive to the First Amendment rights of minors, but as Heins ultimately makes clear, the Supreme Court by the 1980s was still more than willing to sustain government regulations of materials under obscenity standards geared to protecting children. ERZNOZNIK V. CITY OF JACKSONVILLE sums up the Court’s approach, and to show her point Heins quotes Justice Powell, “it is well settled that a state or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults” (p. 87).

Heins does not confine her discussion of how obscenity and indecency laws evolve solely to judicial opinions. I found her two chapters on broadcasting and the enduring quest of the Federal Communications Commission to define and punish indecency on the airwaves to be very interesting and informative. She certainly shows that judges play but one part in how obscenity and indecency law evolves. Administrative agencies are also very important in defining the law, often in dialogue with judges, and Heins’ discussion of the travails of George Carlin, Howard Stern, and other radio and television personalities who conflicted with the FCC over indecency on the airwaves gives a broader perspective to our understanding of First Amendment law in general.

Heins also places her discussion in the context of the political and legal debates over whether minors should have access to information on birth control. She points out that state and federal judges are often divided over whether minors should have some kind of access to information on birth control. Some judges use the free speech clause of the First Amendment to protect minors’ access to certain types of information on sexual education and contraceptives. Others are more deferential, and defer to state regulations. As Justice Rehnquist put it in his dissent in the 1977 case CAREY V. POPULATION SERVICES, judges should not “unduly [tie] the hands of the state legislature in dealing with the problem of promiscuous sex and intercourse among unmarried teens” (p. 140). Heins also gives an informative discussion of the ongoing political debates at the state and federal levels about sex education, and describes how “abstinence unless married” became official U. S. policy.

The chapter on the political and legal debates over sex education in general is followed by a detailed discussion of the litigation over the federal Communications Decency Act, passed in 1996 to regulate indecency on the Internet. Since she was involved directly in the ACLU lawsuit contesting the constitutionality of the statute, her discussion has a very first-hand account to it. She discusses some of the tactics and strategies involved in the lawsuit that ultimately culminated in the Supreme Court decision RENO V. ACLU, in which the CDA was declared unconstitutional. The chapter on the RENO litigation gives a lot of rich background material for those who teach the RENO case in constitutional law courses, and provides a nice context for understanding how and why the litigation developed and evolved.

Other chapters place the American harm-to-minors standard in a comparative context. After surveying standards in India, France, Britain, Sweden, and European Union policy, Heins notes that most arguments in favor of censorship to protect

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children are relativistic, culturally driven, and “often employed rhetorically for political ends that may have little to do with any objective showing of harm to youth” (p. 200). Her comparative chapter is less rich and detailed than other sections that focus exclusively on the United States, but her discussion does provide an interesting and provocative treatment of how other states, and even international organizations, confront and regulate the rights of children to access indecent and obscene materials.

The book concludes on a normative note. Heins argues that censorship regimes geared to protect children take “the fun, ambiguity, cathartic function, and irony out of the world of imagination and creativity…it also deprives youngsters of the ability to confront and work through the messiness of life—the things that are gross, shocking, embarrassing, or scary” (p. 256). Moreover, censorship “frustrates rather than enhances young people’s mental agility and capacity to deal with the world. It inhibits straightforward discussion about sex. Indeed, like TV violence, censorship may also have ‘modeling effects,’ teaching authoritarianism, intolerance for popular opinions, erotophobia, and sexual guilt” (p. 257). Finally, to be fully involved and functioning adults in our democratic society, “youngsters need access to information and ideas, not indoctrination and ignorance of controversy, precisely because they are in the process of identity formation” (p. 258).

Heins’ argument is premised on the symbolic aspect of censoring speech to protect children from psychological harm. Since the harm to children has never really been proved, the whole edifice of the harm-to-minors standard seems to be without real purpose. Conversely, I’m somewhat curious about Heins’ more normative claims about why censorship to protect children might frustrate their intellectual, emotional, and moral development. Will allowing minors to access internet pornography (which admittedly they already do) make them better citizens? Does censorship really, somehow, teach authoritarianism and intolerance? Does a wide-open, robust, free-market place ideas in which children take part really make them better citizens?

My personal quibbles aside, NOT IN FRONT OF THE CHILDREN is a good book that adds to our ongoing debates over censorship, pornography, and obscenity. I found it very useful to understanding the history of the obscenity debate in the United States, the ongoing confusion that judges evidence when defining standards of obscenity, and the underlying politics of it all. Heins’ book is a well-written and argued history of the legal and policy debates over obscenity and indecency, and in this sense complements scholarship and teaching on the First Amendment, civil liberties, law and society, and constitutional law and politics in general.

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Copyright 2002 by the author, John C. Blakeman.