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."
I kind of wonder what effect this decision is going to have on their self-regulating system.
Possibly. I just cannot handle a lot of movement in any game. Crash Bandicoot 3, for example, had some water levels that were completely unplayable for me; I'd have to call husband or son to play those particular levels. I'm surprised that I can play as many online games as I do; sometimes they have quite a bit of movement.
Gee, it looks like they left out "educational." If they'd included that, as well, they could have used that stupid law to ban every minor from playing games!
As it is, I don't see a lot of games that have any of those values... just what is "political" value for a minor supposed to mean, anyway? And does ANY game have scientific value?
I was at a tech expo back when VR goggles were just being developed, and a vendor had a demo set up with Descent running. I watched a guy actually fall out of the chair playing the game.
Where a community HAS standards, there would be no need for such a law. Store owners wouldn’t stock it, children wouldn’t want it, and parents wouldn’t allow its purchase.
America’s very rigid and strict community standards were enforced through community shame - not law.
Law cannot make one moral. If a Saudi Arabian doesn’t drink in Saudi Arabia it is because there is no alcohol available. If the same guy doesn’t drink in America it is because he is obeying his religious restriction on drinking.
LOL, you seem to think that being libertarian is not being liberal.
It's not. Only two types of people would think it is: the intellectually deficient or the bitter bomb-throwing political partisan. Which type are you?
As a youth many years ago I worked in a small cigar/lunch/soda fountain store. The store had a magazine rack. We had to make sure that the risque magazines that just showed women in negliges were buried out of plain view. I believe the moral standards have changed. I believe that if the change is natural it still has been pushed along by movies, drug concerts, and a host of other influences the most of which is money, honestly earned or otherwise. Try going back to the days of moral influence and good luck.
Hmmm.... I don't remember saying anything like that.
What I said had to do with PARENTS being responsible for the ACTIVITIES of their children.
Here is a 1971 article from Time you may like, “With Black’s death, the court lost its most eminent civil libertarian and a Justice who, more than any other, had influenced its liberal course under Chief Justice Earl Warren.” http://www.time.com/time/magazine/article/0,9171,905407,00.html
“EARL WARREN gained his reputation as a civil libertarian”
http://www.jstor.org/pss/3639820
“While Warren’s record as a civil libertarian on the Supreme Court had”
http://www.vqronline.org/articles/1979/autumn/white-unacknowledged-lesson/
“In contrast to his civil libertarian jurisprudence on the Supreme Court” http://law.jrank.org/pages/19154/Earl-Warren.html
“The Warren Court was committed to the promotion of a libertarian and egalitarian society.” http://legal-dictionary.thefreedictionary.com/right+to+privacy
Under the leadership of Chief Justice Earl Warren, the Court changed the nation’s attitudes toward civil liberties
http://www.abc-clio.com/product.aspx?id=65949
Wieman presaged a brief shift to a more libertarian position that followed Vinson’s death and the appointment of Earl Warren as chief justice in 1953 http://books.google.com/books?id=HnZtAfqHT5wC&pg=PA114&lpg=PA114&dq=earl+warren+civil+libertarian&source=bl&ots=jmxl3fuNAG&sig=XwN_YJpOV8ePuw9_tbSQDc5Fk6A&hl=en&ei=OuoNTs2IH6XSiAKX7_DYDQ&sa=X&oi=book_result&ct=result&resnum=36&ved=0CJYCEOgBMCM#v=onepage&q=earl%20warren%20civil%20libertarian&f=false
In the ruling upholding the search, Chief Justice Earl Warren, a revered civil libertarian, explained http://www.nypost.com/p/news/opinion/opedcolumnists/item_nmQVK57bgn058g0If3vOcK
congressmen demanding the impeachment of Earl Warren for his decisions favoring civil libertarians over red-hunters, letters flooded in to Capitol Hill http://books.google.com/books?id=DG3BE0C0VkAC&pg=PA118&lpg=PA118&dq=earl+warren+civil+libertarian&source=bl&ots=00k58RMXXz&sig=uDAYaLa1G6csvwqzKflrRn6JdsI&hl=en&ei=OuoNTs2IH6XSiAKX7_DYDQ&sa=X&oi=book_result&ct=result&resnum=30&ved=0CO4BEOgBMB0#v=onepage&q&f=false
Under Earl Warren the Supreme Court became a force for civil libertarian reform. A succinct listing of its accomplishments over a period of 16 years http://books.google.com/books?id=cDSFlW9njrsC&pg=PA222&lpg=PA222&dq=earl+warren+civil+libertarian&source=bl&ots=_qMgCssE1n&sig=NKJz0JzStV6Ed68O1DEbDalkVVc&hl=en&ei=OuoNTs2IH6XSiAKX7_DYDQ&sa=X&oi=book_result&ct=result&resnum=12&ved=0CHEQ6AEwCw#v=onepage&q&f=false
Earl. Warren’s high rankings reflects his major role in so many decisions in which the Supreme Court expanded civil liberties in the areas http://epublications.marquette.edu/cgi/viewcontent.cgi?article=1534&context=mulr&sei-redir=1#search=%22earl%20warren%20civil%20libertarian%22
Continued Stearns, “Civil libertarian jurists such as Chief Justice Earl Warren, Justice Hugo Black and Justice Abe Fortas wrote that the states and federal http://www.cliffstearns.net/news2.cfm?id=130
received the Chief Justice Earl Warren Civil. Liberties Award “for his extraordinary contributions to civil liberties.” In accepting the award, http://www.aclusantacruz.org/files/newsletters/newsletterWinter2005.pdf
However, he was not a civil libertarian in the Warren mode. ... http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/stcgug.html
“In a contest between the Constitution and treaties, the Constitution prevails. As the Supreme Court explained in Reid vs.Covert (1957), in an opinion joined by civil-libertarian icons Chief Justice Earl Warren and Associate Justices Hugo Black,William O. Douglas and William Brennan:
http://www.angelfire.com/fl/awdragon/1mlaw.html
“Warren was internationally identified with American libertarianism on racial matters” http://docs.google.com/viewer?a=v&q=cache:Dku3T1qFDmcJ:fp.okstate.edu/vestal/SCinDiplomacy2a.doc+earl+warren+civil+libertarian&hl=en&gl=us&pid=bl&srcid=ADGEESgR8ldmdECuuwn1fTPZkc9YPfyFjwLHcQMo-a8psZoLrAcQxgeDzJTk1t_S1HlkcEyqp18xMBfI20lQ48juBqvbx-Qq1GI8gjjt9g1t9BGBTOp4rE8kFChJpOSk8FbqCvnRaTKT&sig=AHIEtbSRdHO5MBkxxh9L0fYOeG0Z7B14mw
“This clearly written, heavily documented work is an examination of the United States Supreme Court’s treatment of civil liberties from 1953 to 1962, the first half of Earl Warren’s remarkable tenure as chief justice.”
http://jah.oxfordjournals.org/content/90/1/299.extract
“In mid-May, 1957, when most civil libertarians were devoting their energies on this issue by just defending the “victims” of HUAC, it was Stone who correctly sensed that the time was ripe for its abolition.
“Based on a little noticed U.S. Supreme Court decision (Watkins vs. U.S.) at that time, where Chief Justice Earl Warren pointedly asked, “Who can define the meaning of Un-American activities?”, http://www.ifstone.org/on_his_death.php
LOL, the Supreme Court just disallowed those community standards, you guys have been doing that since the 60s.
“you guys”???? Please explain.
Community standards are not the law, the law is the law.
The strict community standards of early America were from the community - not from the law.
You can’t enforce a standard without a law, and you support the feds crushing this community standard.
Community standards in San Francisco is that McDonalds cannot offer a toy with the sale of a “Happy Meal”. Do you support such laws - in order to ENFORCE a community standard, or do you think it incumbent upon parents to buy or not buy a “Happy Meal” based upon their own judgment?
You need to move beyond word labels and search for meaning behind the words. In his day, John Locke was considered a "liberal." Doesn't mean he has anything in common, politically, with Ted Kennedy.
Bottom line: there is absolutely no disputing the fact that Earl Warren was a liberal Republican who was loved not only by California's Republicans, but Progressives and Democrats as well.
It's part of the historical record.
If you look at the last 60 years of our history, you will see that libertarianism has created things like San Francisco.
Somehow the tail wags the dog now, it came from courts and the Supreme Court.
Get the courts back to the way they were our first 150 years and you will see the straights in this nation reassert “community standards” that truly reflect the conservatism of dads and moms and grandparents, and church goers.
Thanks for dismissing all that proof without so much as a look.
Warren was a libertarian, have you ever looked at the libertarian party platform?
It is hardly “libertarian” to forbid circumcision or ‘Happy Meal’ toys. Quite the opposite in fact.
Your logic. It be ill.
Logic would be you reading my post, I never said those specific laws were libertarian.
If you look at the last 60 years of our history, you will see that libertarianism has created things like San Francisco.
Somehow the tail wags the dog now, it came from courts and the Supreme Court.
Get the courts back to the way they were our first 150 years and you will see the straights in this nation reassert “community standards” that truly reflect the conservatism of dads and moms and grandparents, and church goers.
So enforcement of a community standard of a ban on toys in “Happy Meals”?
Do you support it?
How about laws enforcing the community standard against circumcision?
Do you support it?
On what grounds to you oppose the Nanny State on toys and foreskins, but support it on video games?
Do you have a standard upon which such things are to be judged?
I do. I think games should be rated for content like movies(and they are) and I think responsible stores should refuse to sell adult rated games to minors - as they refuse entry to R rated movies to unaccompanied minors. That is a community standard that is entirely without a need for any law to enforce.
Stores that sell adult rated games to minors should be boycotted, protested against, etc.
A law is unnecessary where people have moral standards - where moral standards are absent - the law will be insufficient.
I am amazed that you guys keep pushing the left’s agenda, and never stop to think about what destroyed this country in the first place. How libertarianism was the crushing force that the left used to break up our communities.
How do you think the left overcame the natural, and enduring social conservatism of America, is it all about individual freedom from the left, of course not, just as it never was entirely true from the traditional America.
What changed was the balance between individual rights and community survival. America always had a conservative version of that balance, now there is a leftwing/libertarian version of the balance since the 50s/60s.
There is a reason that conservatives recognize libertarianism as the ramming tool of the left, first it goes for the soft under belly of conservatism and using activist courts, dismantles it’s moral foundation, then in the resulting vacuum, the left steps in and dominates the common space.
We never get the end to welfare and the economic theories, but we do get the end of necessary traditions and bonding community religious rituals, we do get the prostitution, the dope, the open homosexuality, and then while the streets burn, the left takes over the common space, and the good and decent lose it.
Restrain the courts and the straights will come back into power and control over “community standards”, and the left will recede back into the dark corners of life.
Interestingly, that will also result in smaller government, like it used to be, that is another contradiction of libertarian gains of the last 60 years, it resulted in more government, which was predictable to anyone with any sense.
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