expression, he generally retains the power to fix the limits of the publicity, which
shall be given them.72
This concept of agency in the right to privacy provides interesting advice for social media
use; while a vast majority of things we post online are public, we have the right to choose what we
post online. There is a chance that something you say to another person, but choose not to post
online, will end up publicly available anyway, but should you choose not to express it at all, you
can be sure it will never end up anywhere adverse. However, this is not true for children. Children’s
self-control develops with age, and decisions about how or whether to express certain emotions
develop along with that.73 Unfortunately, children are not the ones posting online and parents do
not seem to have a very astute filter as to what they should post about their children’s expressions
online. The funnier or more outrageous the expression of a child, the more likely a parent is to post
it on the Internet.74 This effectively deprives children of retaining privacy of expression until they
reach an age where they can exercise their judgment as to what they should post online and what
they will not.
B. The Conflicting Rights of Children and Parents
A key value in children’s rights is the best interest of the child. As early as 1877, the phrase
was codified in statute: 1877 Revised Codes of the Territory of Dakota referred to “what appears
to be for the best interest of the child.”75 The notion made its first appearance in case law four
years later in an 1881 case decided by the Supreme Court of Kansas, which held that “the
paramount consideration is, what will promote the welfare of the child?”76 While the phrase has
rightfully been criticized for its ambiguity, it has stood the test of time as “an expression of the
need to keep the interest and perspective of the child foremost in the minds of adult decision
makers.”77 There has long been a tradition in American law that presumes that the best interest of
the child is ultimately served by parental autonomy in child rearing.78 I challenge that assumption
in this Section with regards to parental discretion online.
Children possess recognized Constitutional rights. In In re Gault in 1967, the U.S. Supreme
Court recognized that minors are legal individuals, entitled to the protection of those rights.79
Again, in Tinker v. Des Moines Independent Community School District, the Court held that
students “are possessed of fundamental rights.”80 In both cases, parents asserted their children’s
72 Warren & Brandeis, supra note 1, at 198 n.2 (“It is certain every man has a right to keep his own sentiments, if he
pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his
73 Sudi Kate Gliebe, The Development of Self-Control in Young Children, LUTHERAN EDUCATION JOURNAL (July 14,
(“[R]esearchers have observed that self-control increases with age . . . .”).
74 See, e.g., REASONS MY SON IS CRYING, supra note 29.
75 CYNTHIA PRINCE COHEN & HOWARD A. DAVIDSON, CHILDREN’S RIGHTS IN AMERICA: U.N. CONVENTION ON THE
RIGHTS OF THE CHILD COMPARED WITH UNITED STATES LAW 4, 5 (1990) [hereinafter COHEN & DAVIDSON].
76 Chapsky v. Wood, 26 Kan. 650, 654 (1881).
79 In re Gault, 387 U.S. 1, 12 (1967) (finding juveniles, like adults, are entitled to notice, counsel, and privilege
against self incrimination).