The US Supreme Court today upheld the decision of two lower courts to prevent the State of California from banning the sale of “violent video games” to any person under the age of 18. The Court said the state’s law violated the First Amendment’s protections for freedom of speech. (And before anyone points it out in the comments, yes it violates Kinsellan libertarianism for a federal court to apply the Bill of Rights to the states; I’ll stipulate that, but this post isn’t about libertarian centralism, so let’s move on.) Justice Antonin Scalia and four of his colleagues said that video games are just another form of expression — no different than books or movies — and that the government could not “create a wholly new category of content-based regulation that is permissible only for speech directed at children.”
Two other justices, Samuel Alito and John Roberts, reluctantly agreed that the California law violated the First Amendment, but they wrote separately to express their discomfort with violent video games, noting, “There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.” Justice Stephen Breyer dissented outright, saying the ban was a “modest” restriction on free expression that was justified because, well, elite opinion holds that violent video games are bad for children.
And then we have Clarence Thomas, the only other dissenter, who authored the judicial equivalent of a conniption. His position is that, “‘The freedom of speech,’ as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians.” And when he says “as originally understood,” he means as understood by Puritans who settled the United States long before there even was a First Amendment:
In the Puritan tradition common in the New England Colonies, fathers ruled families with absolute authority. “The patriarchal family was the basic building block of Puritan society.” S. Mintz, Huck’s Raft 13 (2004) (hereinafter Mintz); see also R. MacDonald, Literature for Children in England and America from 1646 to 1774, p. 7 (1982) (hereinafter MacDonald). The Puritans rejected many customs, such as godparenthood, that they considered inconsistent with the patriarchal structure. Mintz 13.
Part of the father’s absolute power was the right and duty “to fill his children’s minds with knowledge and . . . make them apply their knowledge in right action.” E. Morgan, The Puritan Family 97 (rev. ed. 1966) (hereinafter Morgan). Puritans thought children were “innately sinful and that parents’ primary task was to suppress their children’s natural depravity.” S. Mintz & S. Kellogg, Domestic Revolutions 2 (1988) (hereinafter Mintz & Kel- logg); see also B. Wadsworth, The Well-Ordered Family 55 (1712) (“Children should not be left to themselves . . . to do as they please; . . . not being fit to govern themselves”); C. Mather, A Family Well-Ordered 38 (1699). Accordingly, parents were not to let their children read “vain Books, profane Ballads, and filthy Songs” or “fond and amorous Romances, … fabulous Histories of Giants, the bom- bast Achievements of Knight Errantry, and the like.” The History of Genesis, pp. vi–vii (3d ed. corrected 1708).
This conception of parental authority was reflected in laws at that time. In the Massachusetts Colony, for example, it was unlawful for tavern keepers (or anyone else) to entertain children without their parents’ consent. 2 Records and Files of the Quarterly Courts of Essex County, Massachusetts, p. 180 (1912); 4 id., at 237, 275 (1914); 5 id., at 143 (1916); see also Morgan 146. And a “stubborn or rebellious son” of 16 years or more committed a capital offense if he disobeyed “the voice of his Father, or the voice of his Mother.” The Laws and Liberties of Massachusetts 6 (1648) (reprint M. Farrand ed. 1929); see also J. Kamensky, Governing the Tongue 102, n. 14 (1997) (citing similar laws in the Connecticut, New Haven, Ply- mouth, and New Hampshire Colonies in the late 1600’s).
Please note, this is Thomas writing in his official capacity as a Supreme Court justice. He goes on and on like this at some length. There’s a discussion of how Locke and Rosseau — two non-American philosophers — viewed the role of children within society. There’s a recitation of Thomas Jefferson’s views of parenting. At one point Thomas favorably cites the view that not only parents, but government schools, should have “absolute” authority over children. He adds that in better days — you know, back when slavery was constitutional — “Stories written for children were dedicated to moral instruction and were relatively austere, lacking details that might titillate children’s minds.” Ultimately, an originalist view of the Constitution, according to Thomas, holds that a person under the age of 18 is the property of his parents — specifically the father.
Thomas sees no reason that we should depart from the social mores of ate 18th century America: “Although much has changed in this country since the Revolution, the notion that parents have authority over their children and that the law can support that authority persists today.” Of course, the law has changed over the centuries, and as Justice Scalia helpfully noted in his opinion, none of these changes provide even remote support for Thomas’s misogynistic, authoritarian gibberish:
JUSTICE THOMAS … denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none. Most of his dissent is devoted to the proposition that parents have traditionally had the power to control what their children hear and say. This is true enough. And it perhaps follows from this that the state has the power to enforce parental prohibitions—to require, for example, that the promoters of a rock concert exclude those minors whose parents have advised the promoters that their children are forbidden to attend. But it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent. The latter would mean, for example, that it could be made criminal to admit persons under 18 to a political rally without their parents’ prior written consent—even a political rally in support of laws against corporal punishment of children, or laws in favor of greater rights for minors. And what is good for First Amendment rights of speech must be good for First Amendment rights of religion as well: It could be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract, without his parents’ prior consent. Our point is not, as JUSTICE THOMAS believes, merely that such laws are “undesirable.” They are obviously an infringement upon the religious freedom of young people and those who wish to proselytize young people. Such laws do not enforce parental authority over children’s speech and religion; they impose governmental authority, subject only to a parental veto. In the absence of any precedent for state control, uninvited by the parents, over a child’s speech and religion (JUSTICE THOMAS cites none), and in the absence of any justification for such control that would satisfy strict scrutiny, those laws must be unconstitutional. This argument is not, as JUSTICE THOMAS asserts, “circular.” It is the absence of any historical warrant or compelling justification for such restrictions, not our ipse dixit, that renders them invalid.