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."
Heres another
Explain how for a couple thousand years civilization survived without govt to regulate alcohol purchase and consumption....Oh yea...Parenting.
Any store owner can refuse the right to serve a child - Or an adult.. If the ‘community’ does not want kids drinking, it does not require a law. Just involved parents and businesses working together.
Simple huh?
The federal government just imposed their law on us with this decision, this is how the left got most of their victories, like chasing religion out of the public square, court decisions, uprooting our own decisions.
OK. Under what enumerated power do you submit the federal government would have the authority to prevent the states or the people from enacting those laws, or what prohibition do you find in the Constitution on the States or the people to do so, or do you even consider that relevant?
The state and federal can and do legislate everything from the size of the tank on your toilet to making murder a crime. One serves the common good, one does not.
Some things ‘should’ be laws, some ‘should not.’
When government usurps parental responsibility that does not serve the common or any other but their own “good”. Thus they “Should Not.”
Why is that so hard for you to grasp?
You are making this up, you don't know those liquor laws.
Do you think that it was legal for bar owners to allow children to drink alone in their bars in 1900 California?
We “survived” for a couple thousand years of civilization without a Constitution, too. What the hell do you supposed posessed the Founding Fathers to think we needed one. Did it do anything “parents and business working together” couldn’t have done just as well without it?
Are you honestly saying that a 16-17 year old could not drink in a bar at the turn of the century? Do you realize that the drinking age has only been 21 for about 20 years? before then it was 18. before then I don’t think it was federally even codified.
Norm Lenhart: “Government regulation of business is now a desired thing on a conservative website?”
It’s government’s job to govern. That might sound like nonsense, but only anarchists would support no regulation of business. In other words, it’s the nature of regulation, not simply regulation, that conservatives are concerned about.
The SCOTUS has consistently agreed that communities have a constitutional right to regulate the marketing of obscene materials. They also have a constitutional right to protect minors from harm. Justice Scalia himself wrote the latter in his opinion.
So we have a situation here where a majority of representatives in a state believed violent video games were harmful, and they wanted to protect their minors (not adults) from harm. The law was written poorly with a vague standard, but that’s not why it was overturned. It was overturned because Justice Scalia and most of the rest of the worst liberals on the court decide to substitute their opinion for the opinions of the representatives in that state.
Frankly, I’m amazed by Justice Scalia, because he’s often bragged how he’d let a bad law stand so long as it was a constitutional. Well, I guess not so much.
I've already tried to explain to you that I don't agree with this law, but whether I agree with it or not is irrelevant to the question of whether the state of California has the authority to pass it, based on a strict reading and honest attempt to determine the original intent of the Constitution.
It had everything to do with a minimal government staying the hell out of people’s lives. Did you ever actually read the history of this country? Washington wasn’t a homeowner association wannabee commando running around telling people how to parent, nor telling business what to sell and to whom. Nor trying to pass a law every time a farmer’s cow farted.
Good God man This literalism of yours totally misses the point of a “FREE” society.
I’m done. Worship intrusive government to your hearts content, claim victory and have a party.
Good. Take your arrogant rationaizations and be gone.
I don’t know if they could go into a bar alone, and drink their fill, it is your claim that you know the drinking laws for the last 2,000 years, you tell me what the age limits were, and is 16 and 17 the age we are using for the law the feds just created with that court decision?
In Texas when I was a teen, the drinking age was 21, just like it was in most states and had been in Wisconsin since 1866, that didn’t change until the hippie days of 1973 when it went down to 18.
Louis Foxwell: “If homosexuals and abortionists are granted the right to influence their legislature should not those hostile to their agenda be allowed the same privilege?”
Well said!
Personally? I think it was a bad law, but why is it that so many FReepers can’t understand it’s better to let a bad law stand than to tear down a deeper, more important principle. In a representative republic, parents have a right to band together and set standards for their communities.
This isn’t some strange, new concept. Communities already restrict the rights of minors in myriad ways, including constitutional rights. Minors, for example, don’t have a right to pornography, even though the SCOTUS has ruled that’s a 1st Amendment right for adults.
Your erroneous spin on the definition would mean adoptive sterile couples or even a couple which used in-vitro fertilization techniques cannot be called parents.
By the definition posted, if a male provided the sperm, he's a parent. If a woman provided the egg, she's a parent. Homosexuals are not commonly sterile and thus can be parents even under the definition you offer from 1887.
That is the America that has been under fierce attack for 50 years.
The left was successful, now we are a jungle.
That is what you have been defending, the feds.
http://historyofalcoholanddrugs.typepad.com/alcohol_and_drugs_history/2007/12/minimum-legal-d.html
Have fun ;)
Norm Lenhart: “Absolutely. Shouldn’t those who disagree with your personal position on what constitutes ‘perversion’ be afforded the same? Yes?”
Well stated. This is why we have representative government. These disagreements are best solved at the local and state levels in the legislatures, not by a bunch of black robed judges sitting on the highest court in the land.
I doubt you and I have the same concept of what qualifies as perversion, but we are supposed to be free to try and convince each other and our fellow citizens that our definition is best. The SCOTUS just took that right away from us. Even if we both agreed a particularly violent game was harming our children and even if we convinced a vast majority of people in our state to agree with us, we no longer have the right to regulate the sale of that video game to minors.
That’s why some of us FReepers see this ruling as yet another big government power grab.
That supports me, not you, I have known since childhood that kids used to be sent to purchase beer and alcohol for dad and mom and employers, and in Texas you could always sit in a bar and drink what your parents ordered for you until about the 1980s or 90s or so, just like parental purchase of the video games before the Federal Government stepped in.
I haven’t seen anything that says that bars were free to appeal to the kiddie market for their personal consumption.
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