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."
What is wrong with Americans having some control over what can be sold to their children by government licensed businesses?
There is quite a bit of difference between CALL OF DUTY and GTA-Ghetto Pimpin.
When I was a child, we had toy guns and played WAR all the time. We did not, however, play RAPE AND PILLAGE.
Yes, they are. Once the federal government assumes the authority to tell your state legislature they can't do something today, they've also assumed the authority to tell the they must do it sometime down the road if they change their minds. You want that?
Yeah. No good kid ever lied or fooled their involved parents and got their tit in a ringer. Why sure.
You are supporting the state doing the parents job. On a conservative site I am astounded at posters doing so.
Reality is not a stagnant thing. What you and I grew up in is gone forever.
The law, such as it is forbids x rated billboards and so by the law we live under, for better or worse, there are none. Porn to the Muslim is an exposed ankle. Porn to most people involves nudity and or sex.
Do I think there are plenty of disgusting crap out there? Yes. Do I like it? No. But back on point, Show me the definitive proof that video games cause anything but a good time or frustration in the player. Because you do not personally like something or I do not personally like agree etc with something does not merit government intervention.
Not a road I care to travel.
Govt bans Christian churches as they offend muslims
Govt bans Heterosexual marriage because it offends homosexuals...
Se where this crap leads?
Maybe the point is that these children don't have a MOM and DAD. Or at least ones who CARE what their children are doing.
Oh cry me a river that the state can't control your kid!
“I’m not about to hand the roll of parent over to the state.”
While we may disagree on the details of parenting, we agree totally here. I am 100% behind you. It is the parents job, whatever/however that parent chooses, Period.
All kids have lied and gotten in trouble. The difference is being raised to feel ashamed. Of course it's different now parents have given the state control and instead of feeling shame they can go to jail and have a record. Yesiree we need MORE laws!
Not if Americans deemed them inappropriate for children, what changed from our first 180 years, was that since the 1960s, the federal government has taken over every aspect of our lives, and we no longer run our communities, the feds do.
Only the federal government's "libertarianism" was strong enough to destroy America. Since they took over in the 1960s with the Warren court, we have become a broken, grungy, family unfriendly society.
Then I and all others should suffer the penalty of increased government in my/our life? Not just no...HELL NO!
The state isn't controlling the kids, it's controling the people selling the games. Get that through your head.
Those parents will buy the games for them or kiddie will have the money and get someone else to get it.
You have your history basackwards, it is your way that has put the feds in charge of our lives, they were not there before this new libertarian view that burst out from government since the 60s.
The law forbids it to be sold to a minor. That is controlling the kid. It should be the parents forbidding the kid, not government.
Get that through your head.
If you continue to be rude I will not respond to you.
Cry me a river. Nobody's taking your job as a parent away. You'll have to give it up willingly. If this is all that it takes to make you do that, you weren't much of a parent in the first place.
IT’s n-o-n-e of the government’s business what they sell to who!
It’s the PARENTS decision to allow it or not.
Let me ask you ... What’s wrong with the government telling the government licensed hospital to pull the plug on the kid that got hit by the car because it would cost too much to save him? Or 80 year old Granny because well, she’s 80?
Again...see where this goes?
I totally agree.
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