Scalia Wrong, Thomas Right on Violent Video Games


ACRU Staff


June 30, 2011

This column by ACRU Senior Legal Analyst Ken Klukowski was published June 29, 2011 on The Washington Examiner website.

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.



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