Reconceptualizing the State's Parens Patriae Role in the Digital Age Sheerin N
Total Page：16
File Type：pdf, Size：1020Kb
Hastings Communications and Entertainment Law Journal Volume 31 | Number 2 Article 2 1-1-2009 Parental Rights in Myspace: Reconceptualizing the State's Parens Patriae Role in the Digital Age Sheerin N. S. Haubenreich Follow this and additional works at: https://repository.uchastings.edu/ hastings_comm_ent_law_journal Part of the Communications Law Commons, Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Sheerin N. S. Haubenreich, Parental Rights in Myspace: Reconceptualizing the State's Parens Patriae Role in the Digital Age, 31 Hastings Comm. & Ent. L.J. 223 (2009). Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol31/iss2/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Communications and Entertainment Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Parental Rights in Myspace: Reconceptualizing the State's Parens Patriae Role in the Digital Age by SHEERIN N. S. HAUBENREICH* I. Introdu ction ................................................................................................. 224 II. Children and Controversial Content: Parents Versus The State .................. 226 A. A Brief History of Parental Rights ..................................................... 226 B. The State's Interest in Protecting Children ........................................ 227 1. The H arm Standard ................................................................... 227 2. The State's Interest in Shielding Children From Controversial C o n ten t ...................................................................................... 22 9 3. Children's Constitutional Rights and the Internet ..................... 234 4. How the Internet has Changed the Landscape ........................... 235 III. Internet-Exacerbated Harms Versus Internet-Created Harms ..................... 239 A. The Online Behavior of Children and Teenagers ............................... 239 1. The Benefits of Children and Teenager's Internet Use ............. 239 2. The Internet-Exacerbated Risks of Children and Teenager's Internet U se ............................................................................... 24 0 B. The Unique Risk of Reputational Harm ............................................. 242 IV. Potential Solutions: Guarding Against Reputational Harms and Preserving Parental and Children's First Amendment Rights ................................................ 249 A . E ducation ........................................................................................... 24 9 B. Regulations on Online Social Networks ............................................ 251 C. The Constitution and Reputational Harms ......................................... 253 V . C on clu sion .................................................................................................. 255 J.D. 2008, George Washington University Law School; Associate, Jones Day (Washington, D.C.). Sincere thanks to Professor Catherine Ross and Professor Daniel Solove for generating the inspiration and encouragement to pursue this article and to Adam Haubenreich for enduring the constant revisions. The views expressed herein are those of the author and do not reflect the opinions of Jones Day. HASTINGS COMM/ENT L.J. [31:2 I. Introduction1 The internet has, in many ways, taken hold of our identities. Google your name and you will discover-especially if you have an unconventional name-your internet doppelganger, created by piecing together fragments of your life: educational history, publications, groups with which you associate, times for those races you ran, the article you wrote in college, a New York Times op-ed written on whim, organizations in which you participated, and, horror of horrors, photographs of youthful high jinks. The more time we spend on the internet, in fact, the more we simply exist in this digital age, the more fragments of ourselves will be online for the world to see. Although some of the material on the internet could be embarrassing for adults, today's adults only have internet records dating back about ten years. In contrast, the current generation of teenagers and children has been using the internet for a longer period of their lives, creating a much more comprehensive historical record of their identities that could be damaging to their future reputations. This article identifies and analyzes the resulting risks and offers regulatory and education-based solutions to ensure that the future reputations of today's children and teenagers are protected while still preserving their First Amendment rights to express themselves freely and their parents' 2 right to guide their children's upbringing. Since the colonial era in the United States, and arguably since the beginning of civilization,3 the welfare of children has generated bitter conflict between the state and parents. I find that underlying this conflict are two fundamental questions: (1) who is ultimately responsible for a child's education, safety, and health and (2) who decides what defines adequate education, safety, and health. At the heart of the conflict between parents and the state is the struggle to impart values-whether religious, historical, or otherwise-to the child. This struggle has played out most frequently in the contexts of education and social services, where the state has historically assumed a larger role, but has also arisen in the context of exposing children to content perceived to be adult in nature.4 In the private 1. I would like to make clear that this article's scope will be narrow-only encompassing the rights of parents who are deemed fit, where the state traditionally, outside of the educational context, has much more limited rights. 2. In this article, I use the term "parent" to encompass both parents and legal guardians. 3. See LESLIE J. HARRIS, LEE E. TEITELBAUM, CHILDREN, PARENTS, AND THE LAW (Wolters Kluwer, 2d ed.) (2006) (discussing Roman law of patria potestas in which the father had absolute power of life and death over his children and Spartan children, in which children belonged to the state upon birth). 4. See Ginsberg v. New York, 390 U.S. 629 (1968); cf Am. Amusement Machine Ass'n v. Kendrick, 244 F.3d 572 (7th Cir. 2001). 20091 PARENTAL RIGHTS IN MYSPACE realm, parents generally have a great deal of discretion in how they choose to raise their children, which includes exposing their children to whatever they deem appropriate.5 In certain contexts, the state may step in and prevent the child from directly accessing the material the state has classified as inappropriate. However, the Supreme Court said long ago that the state could not prohibit parents from exposing their children to legal adult content.t The dangers of the conventional media addressed in earlier child-harm jurisprudence, such as violent videogames 7 and print pornography,8 differ from the harms on the internet, because the former are somewhat bounded and concrete. Now comfortably ensconced in what many term the "digital age," this article seeks to reconceptualize the current balance between parents and the state with respect to children in the context of the internet, and specifically online social networks. The peculiar harm of online social networks ("OSNs")-in particular, the potentially uncontrollable dissemination and long-enduring nature of posted information-is unlike that of any other medium parents and states have faced in the context of children. For this reason, the parents' right to freely expose their children to certain internet content should not be as broad as with exposure to other legal content. The state and the federal governments should step in to protect children-via education and regulation-from the harms that parents, regardless of how attentive, simply cannot anticipate or guard against. Part I of this article explores the tension between parents' rights to expose their children to, and the states' interest in protecting children from, controversial content. The section begins by surveying the history of parental rights, which are generally broad in relation to the state, and addressing the few judicial exceptions made to the typical deference afforded parents in child-rearing decisions, which fall under what this author terms the "harm standard." Next, it explores the history of states' regulation of controversial content for children. The first section concludes by investigating whether parents should have broad authority in exposing their children to internet content, or whether the internet presents certain harms more analogous to cases in which courts have limited parental authority. Part II turns the paper's focus to intemet-exacerbated and internet- created harms. The section begins by briefly exploring the distinction 5. See infra note 9. 6. See Ginsberg, 390 U.S. at 639. 7. See Kendrick, 244 F.3d 572. 8. See Ginsberg, 390 U.S. at 631. HASTINGS COMM/ENT L.J. [31:2 between those harms created by the internet versus those that have always existed, but which the internet has exacerbated. It next reviews existing harms facing children and teens, for which the internet has provided another forum, and also touches upon the benefits of interet use. Finally, it introduces and discusses the internet-created reputational harm, which is at the heart of this paper. Part III explores possible