Strengthening Constitutional Self-Government

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His Ur-Grandfather's Son

Justice Clarence Thomas has authored one of the Court's most unusual and as usual most instructive court opinions, dissenting in the violent video case (look about 40% of the way down, after the majority opinion).  In voting to uphold California's restrictions on sales of violent video games to minors, Justice Thomas surveys the Founders' views of child rearing, noting among other items Jefferson's education instructions to his wife, the contrasting views of Locke and Rousseau, and children's reading of the time.  The upshot:

"The freedom of speech," as originally understood, does not include a right to speak to minors without going through the minors' parents or guardians. Therefore, I cannot agree that the statute at issue is facially unconstitutional under the First Amendment.

The Court's version of the first amendment appears to have little to do with the original purpose of that element of self-government--the protection of political speech.

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Discussions - 6 Comments

It is the parent's responsibility to monitor their child's video games. I did. I threw the whole thing in the canal next to our pasture. I don't need the U.S. Government involved in raising my kid. I can handle things just fine without them.

BROWN, GOVERNOR OF CALIFORNIA, ET AL. v. ENTERTAINMENT MERCHANTS ASSOCIATION ET AL.

Amen Ken, and Justice Thomas! There simply is no slippery slope here. Or, rather, the slippery slope exists moslty when that which is to be restricted is unarguably political speech, usually because "too much money" is involved. However, when it comes to common sense constraints on what can only generously be called "entertainment", the Court not only doesn't slip, it seems to actually climb the slope.

This case again strikes a blow at the caricature created by the Left that Justice Thomas simply follows in the footsteps of Justice Scalia. Justice Thomas's natural rights jurisprudence is a much more principled foundation than Justice Scalia's majoritiarianism.

I sent this letter yesterday to the Wall Journal:

Talk about fiddling while Rome burns! Supreme Court justices and editorial writers for the Wall Street Journal take refuge in the inapplicable First Amendment to the United States Constitution in order to look the other way in the case of a vulgar, reprehensible industry that enables children to practice torture in video games with other human beings and animals.

As gratifying as it was to hear (thanks to C-SPAN recording of oral argument) justices Samuel Alito and Stephen Breyer inject some common sense in the discussion of a practice that, on the face of it, is "utterly without redeeming social value," it was shocking to hear the sarcasm of the "originalist" Antonin Scalia, who almost seemed to delight in the supposed dilemmas in this case. His legal positivism was worse than useless. It facilitated the insane verdict.

The Journal editorial makes the mistake of imagining that the First Amendment has anything to do with what sleazy merchants sell to children. Of course, the corruption didn't start with video games (try the Garden of Eden), but we are cheapening the political right of free speech by our inability to distinguish between articulating an argument for a cause, a bill or a candidate with manipulating images in a video game.The kids aren't just watching, but actually simulating the performance of the torturous acts.

One hopes that justices Roberts and Kennedy are looking for a better case in which to "narrowly tailor" a ruling that places limits on this evil marketing scheme. But I won't hold my breath.

I agree it is a parent's responsibility to monitor what his child sees, but society doesn't have to make it so difficult. We cannot keep our children in isolation. They encounter the world and through the entertainment industry they get an impression of what is "normal" in the world. A nation has a responsibility to assist parents in proper parenting instead of undermining good instruction so someone can make a buck.

In the face of coarse and life-cheapening entertainment, parents need all the help they can get. If "anything goes" then we are gone. I am sure that if the authors of the First Amendment had known this was coming, they would have written it with more care. How could they know society would descend to violent interactive video games?

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