Protecting Children and Adolescents
The second challenge centers on the question of how the commercial speech doctrine treats regulations aimed at protecting children. Although there is little to no First Amendment case law addressing restrictions on child-targeted advertising, the Supreme Court has indicated in other settings that government paternalism is appropriate when it comes to commercial regulations aimed at protecting children. Studies on children’s cognitive development show that any advertising targeting children under 12 should be unprotected because it is by definition inherently misleading, Graff said. By this reasoning, government can ban harmful commercial advertising—or for that matter any commercial advertising—directed to younger children.
The conundrum is that the Supreme Court has made clear that regulations designed to protect children cannot place excessive limits on advertising to adults. In the 2001 Supreme Court case Lorillard v. Reilly, for example, a ban on tobacco advertising near schools and playgrounds was struck down as too broad because it unduly restricted the ability of tobacco companies to convey their messages to adults.
Within certain child-oriented domains, the First Amendment does permit policy makers to limit child-targeted advertising. School authorities have considerable leeway to set policies establishing what commercial messages, if any, should be allowed on school property. If school districts resort to advertising revenues, they can at least exclude ads for unhealthy foods and beverages. Graff also noted that it is politics, not the First Amendment, that stands in the way of well-tailored restrictions on advergames aimed at children, ads and product placements on children’s television, and the use of cartoon characters to promote obesogenic foods.
The ability of advertisers to have unimpeded access to teens remains an open question. On the one hand, in a recent case involving age restrictions on extremely violent video games, the Supreme Court said that minors have free speech rights to be exposed to offensive digital images and ideas. The Court could apply the same approach to the right of adolescents to be exposed to commercial advertising. On the other hand, Graff explained that a growing body of research has led to recognition that adolescents merit special protection from digital marketing tactics that exploit their cognitive vulnerabilities. Graff concluded that this is another area in which a burgeoning body of scientific research may be on the verge of shaping new legal principles.
Evidence and Regulation
The third challenge involves the type and amount of scientific data the government must be able to muster to justify a commercial speech