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Scalia wrong, Thomas right on violent video games
Washington Examiner ^ | June 30, 2011 | Ken Klukowski

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."


TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events
KEYWORDS: parents; parentsrights; scotus; supremecourt; videogames
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1 posted on 06/30/2011 4:39:25 PM PDT by TheDingoAteMyBaby
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To: TheDingoAteMyBaby

>>Parents had a “sacred trust” to shield children from corrupting influences and to safeguard their development into responsible citizens.<<

Parents. NOT the government.


2 posted on 06/30/2011 4:41:22 PM PDT by Do Not Make Fun Of His Ears (Dear Lord, Please judge Barack Hussein Obama for betraying Israel, and not the whole nation. Amen.)
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To: TheDingoAteMyBaby

>>Parents had a “sacred trust” to shield children from corrupting influences and to safeguard their development into responsible citizens.<<

I hope this doesn’t indicate how he will vote when Michelle tells us what we can and can’t eat. But it’s the same logic. Yikes.


3 posted on 06/30/2011 4:42:17 PM PDT by Do Not Make Fun Of His Ears (Dear Lord, Please judge Barack Hussein Obama for betraying Israel, and not the whole nation. Amen.)
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To: TheDingoAteMyBaby

It was a stupid law in California, but it was an even dumber decision by the court.


4 posted on 06/30/2011 4:42:49 PM PDT by Tribune7 (We're flat broke, but he thinks these solar shingles and really fast trains will magically save us.)
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To: TheDingoAteMyBaby

Ken Klukowski, shut up.


5 posted on 06/30/2011 4:42:58 PM PDT by The KG9 Kid
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To: 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.

Isn't this the job of parents and not government?

6 posted on 06/30/2011 4:44:13 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: DJ MacWoW

Where does that leave parental consent/notification laws?


7 posted on 06/30/2011 4:46:23 PM PDT by TheDingoAteMyBaby
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To: DJ MacWoW

8 posted on 06/30/2011 4:46:36 PM PDT by mgstarr ("Some of us drink because we're not poets." Arthur (1981))
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To: TheDingoAteMyBaby

You want government raising children instead of parents?


9 posted on 06/30/2011 4:47:37 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: Tribune7

Maybe, but to be consistent you’d have to agree that it would be within the rights of states to also pass the same law for books, movies, music, etc...


10 posted on 06/30/2011 4:48:03 PM PDT by MrShoop
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To: mgstarr

Yup. It is up to parents to make sure what their children are seeing and doing.


11 posted on 06/30/2011 4:48:29 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: TheDingoAteMyBaby
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.

If this law remained in place there would of been so many misiterpatations that would render it unenforceable...And who would decide what is violent and what isn't. The last group we can to trust to make such decisions is the state.


12 posted on 06/30/2011 4:49:52 PM PDT by darkwing104 (Lets get dangerous)
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To: TheDingoAteMyBaby

If parents don’t want their children to have some product, don’t give them the money to buy it. If they do somehow come into possession of some product to which the parents object, take it away, destroy it, and throw it in the trash. That is how to restrict what they have.

I find no reason to believe that government would do a better job of parenting than parents, and I am tired of lazy parents abdicating their responsibilities. Who would want a mob of corrupt politicians deciding what is acceptable for their children?


13 posted on 06/30/2011 4:53:36 PM PDT by seowulf ("If you write a whole line of zeroes, it's still---nothing"...Kira Alexandrovna Argounova)
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To: DJ MacWoW

When Planned Parenthood tells minor girls to lie about their age to get access to abortion and birth control services, what recourse do parents have?


14 posted on 06/30/2011 4:56:38 PM PDT by TheDingoAteMyBaby
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To: TheDingoAteMyBaby
I think I agree with Thomas on this one.

I would not agree if this was a federal federal law, but it's not.

Given that this is a state law, and the absence of any compelling reason this is a form of speech that's within the intent of First Amendment protection I'm inclined to leave it to the states.

15 posted on 06/30/2011 4:57:00 PM PDT by tacticalogic
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To: TheDingoAteMyBaby

“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.” “

You see boys this is why we can’t afford to have the Federal Government apply the 1st amendment to the States. Such an imposition demands that they cut holes in the amendment to the point where it is clearly whatever any injustice(Federal judge) wants the law to be.


16 posted on 06/30/2011 4:58:58 PM PDT by Monorprise
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To: TheDingoAteMyBaby
I think it's a stupid law. We have too many laws in the country right now, and California seems to be leading the way on more restrictions. From a federal constitutional standpoint, this needs to be used more often.

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.

This needs to be used more often. We have tons of businesses and individuals dinged for stupid technicalities.

Like this:

appeal to "a deviant or morbid interest in minors."

What does that even mean? I'm licensed as an attorney, and I still don't know what that means.

We as a society need to step back and think about not our values, which are important, but what is worth using criminal and civil fine penalties. Do I want my kids playing Scarface - the World is yours? Hell no. Should that be a LAW subject to criminal penalty? No. That's my job to police my home.

17 posted on 06/30/2011 4:59:47 PM PDT by Darren McCarty (I am not lead by any politician. I am my own leader.)
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To: TheDingoAteMyBaby
Parents need to have control of their children. If they do not, it is NOT governments place to step in.

We are not discussing PP. We are discussing government doing the job of the parents.

18 posted on 06/30/2011 5:01:45 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: TheDingoAteMyBaby

``Thomas showed how the Founders believed limited government could only endure if parents faithfully raised children to become virtuous and productive adults.``

Viz- this does not apply to ``gay marriages`` because gays cannot be parents naturally nor can they ``raise`` children from birth because they cannot procreate in a ``gay marriage``??

Ergo this law does not apply to ``gay marriages``??

What is going on here??

Does the court now have to re-define ``parent`` as it redefined ``marriage``??

The courts cannot have their cake and eat it too.

Otherwise there is a double standard existing in law for:
a.real marriages as existed in 1791 onward til 2011 with parents naturally having children and raising them from birth and
b. ``gay marriages`` which cannot raise children from their birth because neither gay partner can be a participant in the birth because gays in a ``gay marriage``cannot procreate.

The courts cannot return to 1791 and redefine marriage for 1791 nor redefine ``parent`` for 1791.

What if it was a ``gay marriage`` couple that had filed the lawsuit for an adopted child??

This opens a can of worms which borders on semantic devolutionary redefinition of everything in the 1791 dictionary which is absurd.

``Gay Marriages`` can never by the first, nor the middle but are always the last terms in any genealogical document.


19 posted on 06/30/2011 5:03:18 PM PDT by bunkerhill7
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To: TheDingoAteMyBaby

Oh and the PP thing doesn’t work because they’re government funded and taking over the parents job. They need to be shut down.


20 posted on 06/30/2011 5:03:39 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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