Posted on 06/30/2011 4:39:19 PM PDT by TheDingoAteMyBaby
Those who paint U.S. Supreme Court justices with a broad brush only prove they don't really understand the court. Justice Antonin Scalia was dead wrong in striking down California's restriction on selling horribly violent video games to children. And Justice Clarence Thomas did a spectacular job of showing why the Founders would uphold this law.
California enacted a law restricting the sale of graphically violent video games to children, requiring an adult to make the purchase. One such graphic game involves the player torturing a girl as she pleads for mercy, urinating on her, dousing her with gasoline and setting her on fire.
Video game merchants challenged the law for violating the First Amendment. By a single vote, the court agreed. That majority was Scalia, joined by moderate Anthony Kennedy and three liberal justices (Ruth Bader Ginsburg and President Obama's two appointees, Sonia Sotomayor and Elena Kagan).
The court upheld the law 7 to 2, but not on speech grounds. Scalia wrote for five justices that there are four types of speech outside First Amendment protection: obscenity, child porn, incitement and "fighting words."
Holding that obscenity only covers sexual material, the court struck down this law for not satisfying the "strict scrutiny" required of content-based speech restrictions.
Justice Samuel Alito, joined by Chief Justice John Roberts, voted that the law was void for vagueness -- so poorly written that people could not tell where the line was drawn, which would require the statute to be rewritten.
While not reaching the free-speech issue, he strongly suggested Scalia was wrong.
The first dissent was by Justice Stephen Breyer. He quoted from a 1944 case, where the court recognized that the "power of the state to control the conduct of children reaches beyond the scope of its authority over adults."
Although agreeing with the majority that strict scrutiny applies here, Breyer added in his typical fashion that this modest restriction on speech is OK because its benefits outweigh the costs to liberty.
The only originalist opinion came from Thomas, who filed an outstanding dissent that cogently set forth why this law would be acceptable in 1791 when the First Amendment was adopted.
Referencing Scalia's four types of unprotected speech, Thomas explains, "the practices and beliefs held by the Founders reveal another category ...: speech to minor children bypassing their parents. ... Parents had absolute authority over their minor children and ... parents used that authority to direct the proper development of their children."
Thomas continued that parents in 1791 had a duty to restrict influences on their children, because children were recognized to have their own moral failings, and parents were to rigorously instill good values in them and secure wholesome influences on their development.
For that reason, parents took charge of their children's education and monitored what they read and who they spend time with. Even in their late teens, children could not marry or join the military without parental consent, or vote, serve on juries, or be witnesses in court.
Thomas showed how the Founders believed limited government could only endure if parents faithfully raised children to become virtuous and productive adults. Parents had a "sacred trust" to shield children from corrupting influences and to safeguard their development into responsible citizens.
Clarence Thomas' dissent speaks to countless cultural issues we face today. It should be recommended reading for anyone trying to understand the Framers' meaning in the First Amendment where children are concerned.
This case presents as stark a contrast as you'll ever see showing how conservatives can split on the meaning of the Constitution. And it's a critical reminder that the court hangs in the balance in the 2012 election.
Examiner legal contributor Ken Klukowski is a fellow with the Family Research Council and co-author of "Resurgent: How Constitutional Conservatism Can Save America."
OK, how are you with a couple of 13 year-olds walking out of a liquor store with a fifth of Everclear?
Are you a social liberal?
Government regulation of business is now a desired thing on a conservative website?
No, it's not. Neither is misrepresting other people's areguments, ass.
No. Those arguing for more laws and control destroyed it. Land of the free? Not when we groan under government control.
"Government is not reason; it is not eloquence. It is force. And force, like fire, is a dangerous servant and a fearful master." George Washington
"Necessity is the plea for every infringement of human freedom. It is argument of tyrants. It is the creed of slaves." William Pitt in the House of Commons November 18, 1783
"Any people that would give up liberty for a little temporary safety deserves neither liberty nor safety." Benjamin Franklin
Goodnight, ansel.
Are you kidding me? You think that the sheriff and the law turned his head to someone corrupting kids a 100 years ago?
The Federal government becomes bigger, not smaller, with this ruling. Thomas’s dissent—which is truer to the natural law and the Constitution as law—would if followed liberate the States and localities to set the policy. Those are levels far more accessible to us, closer to us, under our control.
Do not think that this ruling makes ANY speech freer. It says this: The Federal Courts according to the whimsy of those fads current among the Ruling Elite will decide what may be said, by who and when.
The Warren Court became libertarians?
Come again?
“If homosexuals and abortionists are granted the right to influence their legislature should not those hostile to their agenda be allowed the same privilege?”
Absolutely. Shouldn’t those who disagree with your personal position on what constitutes ‘perversion’ be afforded the same? Yes?
But it still comes back to the same point. Parents should have control/responsibility of their children, not the govt. Businesses should have control of their product not the govt. Parents and business can decide what their kids can buy with no govt intervention needed.
Here’s what your argument is saying in a nutshell. Not you personally, but the point you just made.
“Parents are not capable of taking care of their kids and deciding for them what is acceptable or not, therefore I want govt to step in and regulate things I don’t like to make them go away and I don’t give a damn what anyone else but me wants.”
Ever consider telling your kid “Johnny don’t go to that store?”
Instant solution. Access denied. If your kid disobeys, that is not the businesses fault, nor the govt’s business.
How are you with reading what I wrote?
I guess that you missed the whole Warren Court and the radical leftism of the last 50 years that was a libertarians dream, as they smashed community standard, after community standard.
As the feds came into our schools and told us that our kids had “rights” that we couldn’t have hair codes, dress codes, speech codes for them, and now that we can’t control how business predators feed on our kids.
You back the feds on this, I don’t.
No I am anti abortion on moral grounds, homosexual ‘rights’ as they should have no more rights than anyone else, pro God, Anti Muslim, pro military and pro minimal govt.
Incorporation is a radical and completely arbitrary invention of the Federal courts(IE Federal injustice system) as early as 1925."
True, but that applies only to the 1st Amendment. That's the only one of the Bill of Rights that specifies EXACTLY who it applies to: "CONGRESS shall make no law", meaning the Federal Congress.
The other amendments, in those parts which are protections of the rights of citizens, were taken to be applied within the State as well, as each joined. Early pro-slavery Judges shunted out that original intent."
Actually as is expressed in the preamble of the "bill of rights" all of them were only intended for the Federal Government.( Every State has it's own Constitutions most all of which with the equivalent of what is in the Federal "Bill of Rights")
The specification of congress making law, is probably to allow the president to issue orders to this effect with-regard to the officers and employees under his command(the Federal Government IE military) such as would be necessary to say keep secretes.
It is no wonder that we have fallen into irreversible decay, you guys don't understand how the nation was built and maintained before you got hold of it in the 60s.
I’ll join DJ as this is going nowhere Goodnight Ansel (AS in Ansel Adams? Big pro lib photo dude?...hell of a moniker)
Then use the feds to stop those things, not to stop the good stuff.
I read what you wrote just fine. You cherry picked the circumstances of your argument around "kids" of military service age having a beer, but there's nothing in your arguments against having any laws restricting what a business can sell to who that stops there.
Now, address the rest of the consequences of your argument - how are you with having a couple of 13 year-olds walking out of a liquor store with a bottle of Everclear.
Tell me the people in any community that don't want liquor stores selling alcohol to their kids don't have any right or authority to pass an ordinance to prevent them from setting up right next to a middle school, and doing exactly that.
Then don’t make pro government regulation arguements. Call me all the names you like. Don’t particularly care.
So, so true. I tried to scurry upstairs with video game contraband once. Never did that again.
Exactly. When I was a kid, we'd play cowboys and indians. I shot a lot of cowboys with air bows, but, to date, have never shot a real cowboy, and seriously doubt I ever will. I also have "killed" hundreds of thousands of other players in video games (yes, exDemMom is a gamer). I allowed my son to play Duke Nukem 3D, Grand Theft Auto 2 & 3, Doom, Half Life 2, Halo, Halo 3, Team Fortress 2, and Red Faction. If video games cause people to be violent, I guess we're a regular Ma Barker and son team. Except--we aren't.
There are always people who claim that whatever form of violent entertainment is popular at the time causes violence. No evidence has established that engaging in fantasy violence spills over into real life.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.