You’re missing the point. Thomas read the commentaries and background of the 1st Amendment, because even back then, children were part of the free speech debates.
Children were, and are, to a great extent, legal chattels of their parents, something which the left has vigorously fought for decades, through the institutions of “in loco parentis” (in place of parents), the schools.
Thomas is known for making superb use of concurring decisions to not just agree with a decision, but to make impressive if sometimes peripheral use of them to go into detailed constitutional questions.
His most profound opinion was in McDonald v. Chicago, the gun control decision, where he wrote a 100 page thesis on the importance of the 1st section “Privileges or Immunities clause” of the *14th* Amendment. (Something which should be in many legal textbooks for the next 200 years.)
http://en.wikipedia.org/wiki/14th_Amendment_to_the_US_Constitution
Everybody else had been focused on the 2nd Amendment, which is the *federal* arguments over gun control. But Thomas addressed the *State* arguments over gun control, which are just as important, but which had been ignored by the rest of the court. It was complementary to what everyone else was doing.
Back to the current case. There is no federal or State law prohibiting minors from seeing ‘R’ rated movies in theaters. It is left up to those showing the movie, and the children’s parents. But often, now, some schools, without notifying parents, are showing their children ‘R’ rated movies.
They are also requiring students to receive leftist indoctrination, by State law. So if States are permitted to intervene in prohibiting children from watching violent video games, they are also permitted to *require* children to watch content to which their parents are opposed.
So once again, while the rest of the court is addressing the federal issues of the 1st Amendment, Thomas is addressing the State issues of the 1st Amendment. In a way that is complementary to what everyone else is doing.
Excellent analysis and you are spot on.
Thomas’ position is the correct one. Scalia, as is often the case, is no the wrong side of this. He shouldn’t ignore Thomas, but should let Thomas lead. We’d be a better, freer country if Scalia would listen to Thomas.
What about the impairment of contracts?
What about the interstate commerce, which though badly abused still is an enumerated power of the Federal government?
It seems that ‘free speech’ (1st amendment) is the worst reason to strike such a law down, especially because [as written] it applies to CONGRESS and to assert that ‘incorporation’ applies it to the state’s legislature is to assert that ‘incorporation’ is not the application of the same as-written Constitutional requirement/prohibition but instead the power of the federal government to apply some altered version thereof to the state to infringe upon that State’s sovereignty and thusly violating the 10th amendment.