First Amendment

Posted by Valerie on March 19, 2009

While parents have the authority, even the duty, to guide and restrict the scope of their own children’s reading, the Bill of Rights makes it perfectly clear that Congress does not share that authority.

Over the years, the courts have taught us that even content-neutral restrictions of our First Amendment rights must pass all three of the following tests:

[1] The restriction must be genuinely content-neutral. Neutrality isn’t always obvious, and restrictions that seem to be content-neutral on their faces might inadvertantly target some kinds of content more than others.

Under this test, I think it could be fairly argued that by keeping pre-1985 books out of children’s hands, Congress is unfairly restricting children’s access to older, more conservative, ”traditional” American values.

[2] The restriction must be narrowly tailored to serve a significant government interest in the least restrictive way. The government interest must be more than merely extant; it must be significant.

Under this test, CPSIA has not even the smallest hope of constitutionality. CPSIA restriction of our children’s freedom to access information was unanticipated and unintended; it was accidental. Congress has never expressed even the mildest interest in keeping pre-1985 books away from children, and we have no evidence that children will benefit from the loss of these books in any way.

I don’t think Congress could successfully make the leap from accidental infringement to proving a significant government interest, and what’s more, I don’t believe that they are inclined to do so.

[3] The restriction must leave open ample alternative channels of communication of the same content. Alternatives must be ample and readily available, not merely possible.

While CPSIA does leave the theoretical option of reprinting everything old and precious, the realities of the market render that extremely improbable. Congress has not attached one easily surmounted restriction with CPISA; Congress has actually created a situation where it will be virtually impossible to fully comply with CPSIA and still leave the full breadth of twentieth-century literary content available to children.

If you picture a government confiscating all the work of a press, but then permitting that press to reprint all of its past work, the result would be infringement of the freedom of the press. The economic reality would not be immaterial.

See Albert Krantz v City of Fort Smith for the application of these three tests to one content-neutral restriction of speech.

Given that we believe CPSIA is an unconstitutional restriction of the First Amendment freedom of American children, we are treating it as such in our business.

“The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed … An unconstitutional law is void.” (American Jurisprudence, Second Ed, Sec. 178)

We will continue to sell children’s books, and are in the process of returning to full marketing , but at the same time we do not find it comfortable to operate with this degree of uncertainty–or with even the smallest potential for government oppression against our good business. 

Both for the sake of our business and our family and for the unjust oppression of other businesses and families and especially for the great potential for harm to America’s low income children, we intend to oppose CPSIA for as long as it remains on the books.