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."
The military is formally recognizing witches and satanists, homosexuals “marry”, porn is on billboards.
You haven’t noticed a difference between 1960 America and 2010 America?
And they probably do. And kids probably get someone older to get games for them just like they do beer and cigarettes. If the kid has money no law is going to stop them.
Aside from banning their actual abuse and murder, the government should have no control over them Period. That’s the parent’s job.
My whole point is that Govt has too much control! And adding another layer, as Thomas’ dissent would have provided, is not what I want.
What tripe. I was a kid in the 50's and the authority was Mom and Dad not government. Take government OUT of raising kids and make/let parents do it again.
There is no such thing as a ``gay parent`` according to definitions in the dictionary:
from my 1887 Webster`s dictionary:
``parent n, [OF., fr.L. parens, -entis, fr. parere, to bring forth]
1. One who begets or brings forth offsspring; a father or a mother.``
source: http://www.merriam-webster.com/dictionary/beget
Are the courts redefining the word ``parent``?
``Gay parent`` ia a contradiction in terms, a falsehood because it does not fit the dictionary definitions.
Red herring. We seem to agree on many issues, but not this.
Parents should have control of what their kids buy/do. That has nothing to do with military witches and I have never seen an X rated billboard even in Las Vegas. Short, tight clothes and 7 in heels isn’t ‘porn’.
Not really. Are Mom and Dad bothering to check what their kid is playing or counting on government to make sure they can't get it? Does the sweet kiddie have money? S/he can get someone older to buy games, booze and cigarettes.
The point is that Mom and Dad need to WATCH what their kid is doing. Not government.
Our laws are what create the public space, you cannot raise families in a cesspool.
Even at my wildest in life, I always wanted to protect the common space for the families, I never wanted the wild to take over that space.
“The point is that Mom and Dad need to WATCH what their kid is doing. Not government. “
The answer. Point, Set, Match.
“If the kid has money no law is going to stop them.”
That’s very true. However, I don’t know of any parent that spends 24/7 with their child. Making it more difficult for minors to get into trouble as is the case by not allowing them to buy beer, is a good thing.
Video games however, are a bit of a stretch.
Based on that reasoning do you think the USSC should also be striking down state and local laws against minors buying beer and cigarettes?
So many people are missing it.
It isn’t a red herring, you said things weren’t affecting us, they did, and they are, every decade gets us farther away from who we were.
You don’t see any x-rated billboards, because your standard of x-rated is different than what it was.
1960s even 1980s Americans would have forbidden many of our billboards today as porn, that goes for commercials, magazine ads and so on.
Nor do I. So how id a kid playing Call of duty or Persona 3 hurting anyone? HOW???? Lawyers said Judas Priest drove kids to Suicide with their music in the 802 to try milking the bands for cash. It was crap then and lawyers blaming video games on violence is crap today.
NEITHER affect the public space. Are there roaming packs of feral Warcraft players out there? No. Do TV ads cause spontaneous WW2 flashbacks in teenagers born 50 years after the war ended? no,
So what then? It ain’t the 1950s. I wish it was. But if PS3s existed then, kids would have played them.
My grandparents weren't with us 24/7 and they KNEW what we were doing. Good parenting doesn't mean being glued to the kid. It MEANS raising them right and talking with them. Being aware of where they go, what they do and who their friends are. It means being involved.
Yes, really. There is no control over your children that this law takes away from you. NONE.
You choose to allow your son to play Call of Duty.
I choose not to, but we allow pretty much any non-pornographic book you could think of to be read and discussed. We have yet to ban a book in the house, and the only “bans” on films have been to read the book before they see the movie where applicable.
The key is that in both cases, yours and mine, we are parenting and not allowing or expecting the state to do it for us. No one decision is appropriate for every child. Who better to make those decisions than the parent?
My children range from grad school through preschool. Good grades, good jobs, volunteer & charitable work, no significant problems at all. They dress modestly, aren’t selfish, snotty or mean. Our kids are awesome people.
I’m not about to hand the roll of parent over to the state.
This has nothing to do with that. I used it for comaprative purposes only.
Do you think kids get beer and cigarettes now? Do think the ones that have involved parents get them? I don't.
Not as strict as it is today. Everything's illegal these days, outside of abortion and gay stuff.
Back in my dad's day, if he got caught partying late at night and was picked up by the cops, he would get sent back to grandma who would lay down the law in house. As long as there isn't abuse (by which I refer to beatings), that's how it should be. Dad's now in his 60's and is one of the most stand up folks you'd ever meet.
I'm in my 30's. In my youth, it depended on the cop what would happen. If my young cousins or in some cases, my cousin's kid gets picked up, law enforcement's is going to ruin their lives with convictions, fines, possible jailtime, and records that affect employment and their future. All for what, getting drunk before 21? Smoking a joint? Even the major stuff. What do addicts need? Jail or treatment?
We have more laws than ever, but our community standards are fading.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.