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 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.”
So you want MORE of it?????
No, "controlling the kid" would be to forbid the kid have it. Forbidding the sale is contolling the seller.
I'm not a libertarian. I'm a small government conservative. And I don't believe that government can raise a kid. All the laws on the books will not raise a decent, honorable child. But parents can.
And we are done. Have a nice day.
Government regulation of business is now a desired thing on a conservative website?
We are in bizzaro world.
I feel like I’m having a 60s flashback and arguing with hippies, and leftists, this was how they changed us, by using the feds to crush us.
We have to remember this always: it benefits the government immensely when we abdicate our role as parent.
The government gets to grow every time a parent doesn’t do their job. When it grows, it gets to demand more taxes, more of your time, more of your life.
The government gets to put its fingers in another pie every time we let it do what we should be doing.
So, for anyone who thinks that this is a good law, ask yourself this: How long before the government moves from saying “kids can’t play violent games” to “kids can’t hunt because it’s violent”.
How long before the government tells you that you can’t own a weapon if you have kids? How long before the government tells you that you can’t own the game if you have kids?
And going the other way, I'll pose the same question to you I posed earlier that went unanswered. Should the USSC also strike down state and local laws against selling alcohol and cigarettes to mionors?
Then please tell me why you are advocating even more federal regulation in our lives? I am not understanding you at all. You keep saying Govt=bad and then are advocating more government regulation at a loss of personal freedom and responsibility?
It is the MAJORITY ruling which gives a distant government far more control over you and yours.
Don't pull that crap on me. Pointing out that saying it's "controlling the kids" when it's actually controlling the business doesn't mean I support controlling the business. It just means I'm against misrepresnting what the law says.
Pointing out that this is the state's decision to make doesn't mean I support that decision, it just means that "states rights" also means they have the right to do things I might not agree with.
Yes. The country ran just fine for a couple hundred years when parents decided when their kids should, if at all, consume those products and not the government.
I will also point out that the Maquis de Lafyette helped save this country from the British “underaged” and soldiers fight and die every day for you, me and the rest of the country without the ‘right’ to crack a damn beer.
So either jack the enlistment age to 21 or 17 and up is just fine with me for a beer.
Asbestos on. ;)
After the 1960s things flipped, the feds used to leave us alone, except for a few things that most of us approved of, like preventing polygamy, but then the Warren Court and the left became libertarians and started forcing their anti-American type morality on us, that is what this ruling is, we have the right to decide what businessmen can do to, and sell our kids.
They just refuse to take the blinders off. They will walk willingly into the trucks.
“
Don’t pull that crap on me.”
Watch me.
Government regulation of business is now a desired thing on a conservative website?
I love this Thomas character.
I would walk into the pre 1960s America, you are driving the leftists dream trucks that they built in the 60s and have been building ever since.
Traditional America is not something to despise, it was our nation then, you guys destroyed it.
We’re going to have to disagree on this topic. I respect your position, but I am totally on the other side.
Expanding the range of acceptable perversion is not in the interest of stable culture. Anything goes is not an ethic. It is an anti ethic.
When parents band together to enforce their will against the purveyors of those they deem are corrupting their children, they influence politicians to make laws. This is the essence of community standards. It is the foundation of law.
If homosexuals and abortionists are granted the right to influence their legislature should not those hostile to their agenda be allowed the same privilege?
When only those who oppose litigating for decency are allowed to design law, culture and freedom are ended.
Of course, you think that social conservatives think that by calling it a business that you have free unfettered access to our children?
We are conservatives, not leftists.
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