Justice Thomas on Children's Access to Speech

Today's big albeit largely unsurprising news out of the Supreme Court is that the high court struck down California's law against violent video games. Kotaku's Stephen Totilo has a great summary of highlights from Justice Scalia's majority opinion, Justice Alito's concurrence, and the two dissents by Justices Breyer and Thomas.

The Journal has long been a big fan of Justice Thomas, so I thought it prudent to interrupt our summer sabbatical to comment on Justice Thomas' dissent.  His words have to seem radical to most modern readers:
In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents . . . . It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents.
If nothing else, Justice Thomas remains ideologically consistent, moreso than any other justice can claim to be. That said, as even Justice Scalia points out in the majority, this would allow the state to prevent children from hearing or saying anything absent parental consent. The result "could [make it] 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."

This sort of result is the necessary byproduct of Justice Thomas' strict originalism and suggests all the more that a slavish reading of the Constitution according to the mindset and worldview of 18th Century WASPs is problematic for the governance of our modern pluralistic society.

What is perhaps more problematic with Justice Thomas' holding is that it seems to strip many constitutional rights from any citizen under the age of majority, and considering our now college-prolonged adolescence, we could rationally raise the age of majority well into one's twenties.  And what would these children be left with other than a constitutional right to vote in an originalist world?

Forum Debate on the Supreme Court

If anyone has a spare hour or so and finds the Supreme Court's docket fascinating, I highly recommend watching the panel below.  In addition to two of NYU's more quirky teaching personalities Rick Hills and Barry Friedman, Tom Goldstein from SCOTUSblog and Dahlia Lithwick, who writes for Slate, also took part in the discussion.

What the NYU press release called "combative hilarity," I would interpret as some surprisingly hostile disagreements among the panelists about the role of political ideology on the Court.  Again, it's a lengthy video but I thoroughly enjoyed the entire thing on only four hours of sleep.

Supreme Court Hears Arguments on California Video Game Bill

SCOTUSblog has a good summary of today's oral arguments before the Supreme Court in Schwarzenegger v. Entertainment Merchants Association (08-1448) on a California bill prohibiting the sale of violent video games to minors:
Seeming to sense that violent video games are a problem for young children, but also sensing that a sweeping law that bans them for everyone under age 18 probably isn’t the answer, the Court appeared poised to nullify a broad California law regulating access to such games.
Despite a rigorous--and FTC approved--self-regulation regime for video games, states have continually attempted to restrict the sale of violent video games.  Until the Supreme Court decided to hear California's version, federal district courts have continually ruled such laws unconstitutional, often awarding substantial legal fees to the Entertainment Software Association.

The fundamental problem is that these legislative efforts almost immediately touch upon the First Amendment.  As Justice Scalia immediately pointed out, the Grimm's fairy tales are also "quite grim," but no one proposes banning them.