In the book “Freedom’s Orphans: Comtemporary Liberalism and the Fate of American Children”, David Tubbs makes a case that freedom comes in two varieties, negative and positive. Negative freedom is characterized as “freedom as unhindered choice” and positive freedom is characterized as “self-control freedom”. In Negative freedom you are left alone and positive freedom involves laws restricting certain things so a better freedom can be produced. Negative freedom is what society has seemed to embrace and he argues that the Supreme Court has basically utilized that type of freedom in many of its opinions.
The problem is that these changes and positions have been related to adult lives and not children and that in the process of allowing more adult freedom in many areas the result is that young children have been exposed in different ways to these adult things as well, and those things have become detrimental to their growth and well-being. He analyzes some Court cases and makes some interesting observations.
He posits that there are two views of children taken by the Supreme Court: morally and psychologically vulnerable, and, having the ability to “avert their eyes”! A number of important cases are decided in the direction of one or the other of these views and which have led to many social problems of today.
1st view: “morally and psychologically vulnerable”
Two major court cases, “Abingdon School District v. Schempp” 1963, and “Engel v. Vitale” 1962. The Engel case involved school prayer and the Abingdon case involved Bible reading or Lord’s Prayer recitation to the whole school.
In Engel the Court reasoned that even though that dissenting children could be exempt from praying because it was voluntary, which one would think would have made this acceptable, that there was still an indirect coercion to conform to praying, a kind of peer pressure and hence, the voluntary nature of the exercise was irrelevant. The Court ruled against the school district!
In Abingdon, the Court also said the exempting was irrelevant here also. William Brennan, one of the majority Justices relied on studies about the social conformity of groups among that age group to rule the school practice unconstitutional! Again, some kind of coercive effect.
These two cases looked at the young as being very vulnerable and thus needing protection!
2nd view: “avert their eyes”
Two cases, one major and the other considered minor, “Erznoznik v. City of Jacksonville” 1975, and “United States v. Playboy Entertainment Group Inc.” 2000. The Erznoznik case involved outdoor drive-ins in which the screen could be seen in the wider public space, and the Playboy case involved the use of scrambling channels so nonsubscribers would not come into accidental contact with adult material on TV.
In Erznoznik, the Court decided against the City, who wanted to prohibit the drive-in owners from showing adult related movies due to the fact that part of the viewing screen could be seen by the nonviewing Public. One of the reasons for the prohibition was for protection of minors and the effects those images have! Basically the reasoning by the Court was that the ordinance somehow affected the 1st Amendments rights too much of even minors and with regard to being affected by images, they said that there is an expectation that “minors” can “avert their eyes” from the offending images! So the City lost.
In the Playboy case, there was a section of the Telecommunications Act of 1996 which put strong expectations on the scrambling and blocking technologies of TV programming. This was specifically meant to protect, again, minors! Very technical case but the result was that the Gov’t lost and, regarding the part about minors, the Court again declared this statement: “we are expected to protect our sensibilities by simply averting our eyes.”
In these two cases Court acts as if minors are responsible as adults and have the ability to avert their eyes from some of these things. Not really very realistic many would agree!
Negative freedom can also be discerned here in these results.
So there is a lot on this topic in the legal world but these two views of children through the Court are somewhat troubling because everything was decided in the opposite manner. These cases should have been decided the other way if children are the priority as they should have been. This book argued that children have been the ones who have been left behind in all these cases. A kind of freedom had been secured, a negative freedom, but at the cost of negative effects on children and a wrongheaded view of children!!
What should have occurred is that Erznoznik and Playboy should have lost due to the possibilities of kids being exposed to the wrong things. Stronger technology towards protecting children is a good deal! The Engel and Vitale case should have allowed for the religious practices to stand, knowing that religion is healthy to individuals and society and that it has been such a part of our heritage. Those who did not wish to participate could continue to be exempted and if there was “indirect coercion”, that could be dealt with separately.
What I see from this is another indication of our cultural and spiritual divide. It is illustrated clearly here when one notices that the immoral practices associated with sinful human nature is what was, in the end protected, and that the religious part, those things which can improve our lives from the immoral tendencies of human nature, was acted against.
It is the clash of “flesh-Spirit”, “death-life”, “God-man”, “sin-righteousness”, “light-darkness”, and any other dichotomy in the Bible that relates to our struggle against sin. None of this was mentioned as far as I know in these decisions, (court decisions are not easy reads!) but it comes through as “fruit” and really gives a disturbing contrast