Protecting Children vs. the Constitution

OK, strict constructionists, where in the Constitution does it say the First Amendment – especially the “free speech” part – doesn’t apply to children? So we should be able to allow kids free access to porn? Allow kids to volunteer to “free associate” in sexually provocative groups of exploitative adults. Oh, that’s OK, until the adult “touches them”… but filming them is OK? Yeah, well, it gets increasingly complicated when you start dealing with lesser communications, like California’s attempt to regulate the sale of explicit and violent video games to under-18 children, a case that the U.S. Supreme Court will be deciding soon. Here’s a glimpse of the court’s preliminary reaction: “Chief Justice John G. Roberts Jr., the only member of the court with young children at home, described the quandary during oral arguments in the video game case. He read a graphic description of a game that encouraged beheading and setting victims on fire and added: ‘We protect children from that. We don't actively expose them to that.’” Washington Post, February 28^th.

But there is this “other” side of protecting children that is also before the Supreme Court in Camreta vs. Greene (there is a companion case from North Carolina with similar circumstances); the Post explains the facts (which involved a man’s daughter as well as the son of his employer): “In Oregon, a 9-year-old girl was escorted from class to a school conference room, where a child-welfare caseworker and a police officer questioned her about whether her father had touched her inappropriately. After two hours of questioning, she finally said he had, a statement she later recanted.”

The tale began when Greene’s wife told authorities that she had concerns for her daughters because of her husband’s drinking problems, and the police proceeded to “investigate.” But the charges were even more complex, as the Post relates: “At the center is Nimrod Greene, charged with fondling the 7-year-old son of his employer.” Greene copped a plea with the boy, but the charges in connection with the daughter were eventually dropped. By the way, the girl wound up in foster care before the truth reversed the situation; that inappropriate touching with his daughter never happened.

The matter at bar arose when the parents filed suit against the social worker and the deputy sheriff who had conducted the interrogation that resulted in the arrest of the father. Was this a “warrantless” and unreasonable “search and seizure” under the Fourth Amendment? Should the officials be found liable for “badgering” a falsehood from a scared little girl? A falsehood that resulted in the arrest of one man and the transfer of the girl, however temporarily, to foster care, most certainly a major traumatizing result? The Ninth Circuit, while ruling that the interrogation was indeed an unreasonable search and seizure (there was no “emergency” that would excuse getting the mother’s permission or a warrant), also ruled that the officers enjoyed immunity from liability in their official functions.

The two sides to this constitutional and moral dilemma are best summarized in these two statements cited by the Post:

1. “Oregon Attorney General John R. Kroger told the court in his brief that providing a judge with probable cause for a warrant in child abuse cases is often impossible without interviewing the victim. It should be obvious, he said, why parental permission is not always an option…. ‘Protecting children from abuse is one of society's fundamental goals,’ he wrote. ‘The government has a compelling interest in conducting child-abuse investigations in a manner that is least likely to be traumatic for the child and is least likely to taint disclosures of abuse.’

2. “But the other side of the question is represented by 18 amicus briefs joined by 70 groups across the political spectrum arguing that the 9th Circuit should be upheld. The case raises important questions about parental rights and the rights of children, they said. ‘The fact that the seized person here was a 9-year old girl requires, as a matter of constitutional law, more vigilance about protecting individual liberty from state abuse,’ the Center for Individual Rights said in its brief.”

Well, the Supreme Court will most certainly let us know the results, and they have clearly ruled in the past that the laws and constitutional rights do indeed have a potential of differing application to children, who have vulnerability and lack the mature capacity of an adult… but within limits. What’s your opinion?

I’m Peter Dekom, and the “simple solution and interpretation” thang once again eludes us.