life direction.112 Rights, he argues, are protections of individual self-determination.113 To allow
parents parental rights that infringe on children’s rights of self-determination is fundamentally
paradoxical to the concept of personal liberty. Altering our understanding of the parents’ role in
the child’s life from parental rights to parental privilege would resolve this paradox. It would not
force us to abandon the value of the institution of the family, but would adapt the view of parental
rights within a family to allow breathing room for children’s individual rights to exist. It would
enable courts to make decisions solely based on the welfare interests of the child, rather than
engaging in a sometimes impossible balancing act of parents’ rights to parent and children’s rights
as individuals.114
C. First Amendment Implications and Communication Privileges
The question of what parents should be allowed to post about their children online does not
occur in a vacuum where only children and parental rights exist. The First Amendment also bears
heavily on this question. Generally, content-based restrictions on free speech are subject to strict
scrutiny, and the government must show a compelling interest that the statute employed is
narrowly tailored to the goal, and is the least restrictive option for achieving it.115 The U.S.
Supreme Court has shown a willingness to limit speech in favor of other values. These values bear
on the question of children’s privacy.
Defamation is an area of limited First Amendment protection. When a statement is
defamatory and harmful to its subject, the U.S. Supreme Court has limited free speech protection
to allow the victim to recover, so long as the plaintiff meets their burden of proof.116 The Supreme
Court held in Gertz v. Welch that a private figure plaintiff must establish fault to prevail on a
defamation claim, but left it up to the states to decide what exactly that meant.117 Some have
suggested that the standards of defamation should be lower online due to the ease with which
someone can respond when they have allegedly been defamed.118 This rationale does not extend
easily to situations where children have been defamed, particularly children who have not yet
learned to use the Internet. One federal court in California agreed that the standard should be
different online, but for a different reason: in the context of the Internet, things are expected to be
hyperbolic.119 Therefore, statements that would have been defamatory were held not to be
defamatory based on the expectation and understanding that things are often exaggerated online.120
If this standard is upheld in other courts, it will have difficult implications for online defamation,
particularly for children, unless exceptions are carved out for those who do not have comparable
access to the forum. A court could follow that same reasoning to conclude that parents often
exaggerate for effect on the Internet, maybe when they are talking about or, more saliently,
complaining about their children.
The Supreme Court has also limited first amendment protection to speech with regards to
