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."
Actually, the last group you'd want doing it is a bunch of unlected bureaucrats in Washington.
The federal government needs to leave it to the states, and then we need to tell our state legislators to just leave it alone.
Admittedly, the original public understanding of a constitutional provision does not always comport with modern sensibilities. It may also be inconsistent with precedent.YES! Let's restore the Constitution in it's true original genius of meaning!
“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.”
This is why the 1st amendment as written, ratified, and practiced for the first 100+ years. DID NOT APPLY TO THE STATES!
Incorporation is a radical and completely arbitrary invention of the Federal courts(IE Federal injustice system) as early as 1925.
SO much for community standards.
Next up the Kiddie Porn TV channel!!
How our grand parents survived Looney Tunes back in the Thirties and Forties I’ll never know ....
abolish public schools then
That is the point....michelle is the government. A really sick non logical society is one that rationalizes urinating and torturing a girl and saying it is not obscene and allowing it to be marketed. It should have no legal protection whatsoever, which is exactly how the Founders would have thought.
Scalia has no knowledge of Natural Law Theory or ignores it’s influence in the Constitution....it is the basis of our laws...inalienable rights come from God and are non negotiable, yet Scalia has said, in his ignorance, that States should be allowed to vote for the right for women to kill their babies....and possibly, deny the baby their inalienable right to life. What does Scalia not understand about inalienable rights? Why would the place of a human being affect their “life”?
Thomas totally gets it. He is an expert on Natural Law and understands the Constitution as it was written. There is a law to judge obscenity-—it is God’s laws....in the founding documents and it is easy to understand those Universal Laws which are the bases of our Constitution (or it was before they adopted Marx’s moral relativity where law becomes arbitrary whims of whomever!!!!like that homosexual judge in SF.
We no longer have “Just Law”—we have unequal law which gives “rights” to minorities and takes them away from others whom they “think” deserve the discrimination. It is the powerful elites pretending to be god and determining their own right and wrong....not based on God’s law which is in the Founding Documents!
What we have is unconstitutional laws and Thomas thoroughly understands that...and that is why the Marxists are trying to get him off the court 24/7. He is the smartest one on the court.
Why do you want a nanny state to raise children? I'm seeing the most ridiculous comments for government intervention instead of parental control.
The internet is a video game. It will end up destroying us. Social networking will be the end of human to human face to face interaction. My 2 cents. Virtual reality will become reality.
He is very responsible (A's and B's in school), so I don't mind if he purchases the ‘violent’ games. He actually was a bit shocked to hear about the ruling.
In California, the schools teach homosexuality and how great gay marriage is without parental consent and if a young girl needs an abortion, the parent does not have the right to know.
At least if my son purchases a new game, he has to run it on on his game console at home and I can see if it is inappropriate. It is not like going to a movie where I would not have any idea what he is seeing.
Anyway, I think that this is best left to the parents.
You can’t have community standards, without government laws.
America used to have very rigid, very strict, community standards.
He’s stating that the parents, not the wookie in chief, have the sacred trust.
I would like all the Pro-ban violent video games types to think back to about 1985ish.
Remember a certain VP’s wife and her crusade along with a bunch of Washington wives to ban any music they disagreed with? Thanks to a motley crew of musicians, Frank Zappa, Dee Snider (Twisted Sister) and John Denver, the damage they did was minimized to a warning sticker on albums and CDs. That was bad enough.
I’m 45. I grew up during the church led hysteria that the game Dungeons and Dragons was creating a generation of Satanists. Didn’t happen.
I also was around for PONG, PacMan and the first round of video games. None of us went mad from slaying dragons, shooting aliens and yes, even shooting bad guys. You know, just like every little kid with a Daniel Boone hat and a toy gun has imagined doing for a while now? And ‘played war’ with vivid imaginations for thousands of years before that? Oh....forgot about that huh?
If there is anyone here that can say with a straight face that VGs are any worse than movies, I don’t know what to tell you. Don’t give me that “They’re shooting virtual people so they will grow up to shoot real people” crap. If that were true, half this planet would be dead.
The regulation of video games belongs to #1 the companies who choose to make whatever types of games they want (for without games, the point would be moot) and #2, the Parents, Period. Government has no place in this at all.
Video game companies voluntarily created a rating system for parents, advertize the hell out of it, label every game and that’s all they SHOULD do. If parents are that damn lazy and uninvolved that they pay no attention to what their kids do, that’s the parent’s fault and I and every other person who has spent a lifetime enjoying a pastime should not have to suffer their, or governmental stupidity so that some Tipper Gore clone and homeowner association wannabee can exercise their ‘au-thor-a-tay’.
Oh, and many of those video game traumatized ‘children’ are now, and have been for some time, defending your country, operating on your family members, driving your school busses and cooking the meals at your 5 star restraunts.
Think about it before you rush to demand even more government in your lives. And stay out of mine.
This is why the 1st amendment as written, ratified, and practiced for the first 100+ years. DID NOT APPLY TO THE STATES!True, but that applies only to the 1st Amendment. That's the only one of the Bill of Rights that specifies EXACTLY who it applies to: "CONGRESS shall make no law", meaning the Federal Congress.Incorporation is a radical and completely arbitrary invention of the Federal courts(IE Federal injustice system) as early as 1925.
The other amendments, in those parts which are protections of the rights of citizens, were taken to be applied within the State as well, as each joined. Early pro-slavery Judges shunted out that original intent.
The law as I understand it didn’t allow children to buy it, just like they can’t buy skin magazines or beer. The parents can buy it for them if they desire.
This ruling gives the Government a LOT more control over you and your children than it takes away.
Most of us would choose to raise our kids in the cleaner community of traditional America, before you guys and the Warren Court created the post 1960s America.
That is what I infer too from reading the Thomas dissent, although I did not read the CA law to which it applies.
I don't see where how this law takes away any of your "parental control". If you want your kids to play any of those games, they can, but you have to buy it and give it to them. That control is still in your hands.
Sure you can. And community standards used to be higher before government stepped in. Remember when schools could actually punish kids? Like sitting them in corners or the hall? Not anymore. Government says it hurts their little feelings.
Remember when parents actually had authority? Kids now only have to call the state if Mom and Dad make them mad and it's off to jail for disciplining the kiddies. The accusation doesn't even have to be true. Government has taken away parental authority and replaced it with THEIR "authority". And you want to give them MORE?!
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