To Be Seen but Not Heard: How the Internet's Negative Impact on Minors' Constitutional Right to Privacy, Speech, and Autonomy Creates a Need for Empathy-by-design

• Publication year: 2022

To Be Seen But Not Heard: How the Internet's Negative Impact on Minors' Constitutional Right to Privacy, Speech, and Autonomy Creates a Need for Empathy-By-Design

Jon M. Garon

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To Be Seen But Not Heard: How the Internet's Negative Impact on Minors' Constitutional Right to Privacy, Speech, and Autonomy Creates a Need for Empathy-By-Design

Jon M. Garon^*

I. Abstract

This Article reviews the rights of individuals younger than eighteen to engage in their daily activities, now often mediated through online service providers, learning management systems, and other technological intermediaries. Unlike prior generations, modern adolescents must navigate the complex world of online society in addition to their family life, school day, and the time they spend away from school at work or in social activities.

This project includes concerns over bullying and harassment, contractual rights, social media policies, child pornography laws, revenge pornography laws, and end-user license agreements.

Neither sectoral privacy laws nor state privacy laws address the complex problems adolescents face in the online sphere. The landscape is such that the average teen spends much of the waking day online—a virtual existence that provides little anonymity and that leaves them vulnerable to predation and harsh consequences of their own mistakes. Parents are legally expected to be the primary authority for these teens'

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upbringing and well-being, but the online competition often makes this a challenge. Parents and other authorities lack relevant knowledge to help the digital generation deal with this array of online issues.

Against this backdrop, many parents and states have turned to schools to regulate teen conduct. In response, the Supreme Court of the United States stated that the parent's traditional authority remains central, suggesting that while the schools have a role to play in loco parentis, the parents and guardians have primary responsibility. This is particularly true for online, off-campus speech. The cautious guidance provided by the Supreme Court will continue to pressure school districts and other state regulators to fashion practices to address these challenges.

This Article reviews the Supreme Court's school-speech jurisprudence within the larger context of online speech and conduct regulation for minors, including minors' right to access information, to create their own content, including sexual content, to transact online, and to obtain an abortion. In many of these activities, minors are barred, subjected to parental consent, or required to seek a judicial alternative to parental consent. By looking both in and beyond the schoolhouse, this Article will identify the constitutionally required protections for minors of various ages, providing a framework for assessing the constitutionality of new state laws.

II. Introduction

Tell me is my voice too loud
A grating sound piercing the beautiful silence:
Children should be seen and not heard
Compliant and quiet, empty husks for your indoctrination
For your prescription
For your fear of subversion
—Angel Xing¹

At the most global and abstract level, the fate of children has improved in this century. For example, in 1980, "10 percent of the children born that year died from preventable causes. By 2018, that

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number had declined to just 3 percent."² Today, United Nations International Children's Emergency Fund (UNICEF) focuses primarily on malnutrition and basic medicines. While the global outlook for children has improved, severe risks remain. UNICEF reported that "[i]n 2018, almost 200 million children under [the age of] 5 suffered from stunting or wasting while at least 340 million suffered from hidden hunger."³ Thankfully, most of the world's children receive the nutrition and shelter they need. Children, however, need much more.

Adolescence is the pivotal period between childhood and adulthood . . . . [Y]outh need to acquire the attitudes, competencies, values, and social skills that will carry them forward to successful adulthood. It is also the time when they need to avoid choices and behaviors that will limit their future potential.⁴

Adolescents,⁵ the rising generation of leaders, are a potent force in the global economy. The family is the fundamental and universal organizing principle of society, and parents are responsible for the education and well-being of their children. Article 16 of the United Nation's Universal Declaration of Human Rights provides that "[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State."⁶ In the United States, parental rights are considered fundamental rights that cannot be

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usurped by state authority without a compelling state need.⁷ "Yet at least 25 percent of adolescents in the United States are at serious risk of not achieving 'productive adulthood' and face such risks as substance abuse, adolescent pregnancy, school failure, and involvement with the juvenile justice system."⁸

Familial rights often interfere with the rights of the minor, reassigning a substantial amount of individual autonomy from the minor to the minor's parents. In conflicts between the parents' rights and the children's rights, legal doctrine is inconsistent regarding parents' fundamental rights to make decisions on behalf of their children and the rights of children to make their own decisions. Nowhere are these conflicts greater than in the related areas of privacy and speech. As a result of this historical tension, the legal fiction of the minor is used to retain a body of law that does not respect the minor's autonomy, nor does it adequately reflect the tension between minors and their parents or guardians. Minors express their autonomy in several ways. They enter contracts, participate in education, engage in public speech of political and social natures, and have sex—which means that many seek contraceptive services, and some seek abortions. This Article explores the many ways adolescents express their autonomy despite authority vested in their parents and guardians, in their schools, and in the state. As described in this Article, struggles for autonomy have become more difficult and complex due to the occasionally hostile and demeaning experience teens face online.

After reviewing the teen struggles for autonomy, this Article identifies specific counterproductive efforts in helping minors develop into healthy, productive adults. Specifically, this Article suggests that expanded school authority to punish students for antisocial behavior is ineffective at resolving the problems faced by teens. It also suggests that the rights and interests of teens in their own sexual activity should serve to limit certain instances where child pornography laws are used to punish individuals for their own sexual activities that do not involve adult predators.

Rather than finding the situation intractable and current solutions ineffective, however, this Article concludes with a prescription for how best to create a healthier environment for teen development and growth. Using the principles of "empathy-by-design," this Article suggests that a combination of steps can be undertaken to improve the environment for teen development. These include bringing advertisers, financiers, and other enablers of social media to help prioritize the end

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to online harassment, the development of empathy-based human-centered design principles into the school setting, expanding restorative justice practices, and teaching the skills and science behind empathy to make empathy-based problem solving the standard for teen development and institutional processes. Only by moving from a rights-based approach to an empathy-based model will the communal goals of raising healthy, well-adjusted, and productive teens be met.

II. The Legal Rights of Parents Over Their Children

The United Nations has recognized both the rights of parents and guardians. In both the 1959 Declaration of the Rights of the Child,⁹ and the 1989 Convention on the Rights of the Child,¹⁰ the United Nations emphasized the role of parents and guardians as the gatekeepers for child welfare. The Preamble to the Convention includes the following statement regarding families: "Convinced that the family, as the fundamental group of society and the national environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community[.]"¹¹

The rights of a parent have long been established as a fundamental part of domestic law and a foundational component of natural law.¹² "The parent, by natural law, is entitled to the custody and care of the child[.]"¹³ This right comes with certain duties and limitations imposed by the state.

To society, organized as a state, it is a matter of paramount interest that the child shall be cared for, and that the duties of support and education be performed by the parent or guardian, in order that the child shall become a healthful and useful member of the community.¹⁴

"The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of

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the fundamental liberty interests recognized by this Court."¹⁵ Unless there is a conflict, the child's legal rights are generally safeguarded by protecting the interests of the child's parents or legal guardians.¹⁶ "[P]arents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions."¹⁷

Parents are obligated to take care of their children, yet one-third of children in the U.S. do not live in two-parent homes.¹⁸ The biological parents are presumed to be the custodians of their children without the need to demonstrate their ability to raise children or prove that their...