Maggie Gallagher

The Supreme Court has finally gone mad.

Before, people like me could almost always blame liberal "activist" justices, but this time seven justices, including conservatives Antonin Scalia, John Roberts and Samuel Alito, signed on to the constitutional madness.

The case called Brown v. Entertainment Merchant Association, involves a California law that forbids stores to sell video games with violent content to minors, or risk a $1,000 per violation fine. Note what the law does not do. It does not forbid parents or other relatives from purchasing violent video games for children. It does not forbid minors to play violent video games. It doesn't forbid anyone to give a video game to anyone they want.

It simply forbids a business to sell a violent product to a child without the parents' sanction.

How can this violate free speech?

Yet of nine justices, only the odd couple of Clarence Thomas and Stephen Breyer objected, and of these, only one -- Thomas -- grasped the elemental truth: Our beloved First Amendment does not give business a constitutional right to market violent video games to your children without your consent.

For Thomas alone, this was a simple case:

"'Freedom of speech,' as originally understood, does not include a right to speak to minors without going through the minors' parents or guardians."

Scalia's majority opinion ties itself up in knots to avoid this simple truth.

First, he insists that a video game, like nude dancing, is speech.


Then, Scalia insists that the act of selling a video game is also speech.


So far, that's arguable, but within the realm of the rational.

Then Scalia goes off the deep end, insisting that, therefore, businesses have a constitutional right to sell video games to your children without your consent.


Scalia borrows from the pornography experience to point out that much worthy literature, including some we assign in schools to children, includes graphic depictions of violence.

It is patently irrational, he rules ("wildly underinclusive") for the law to forbid children to buy "Grand Theft Auto" (or worse) and permit them to buy Grimm's Fairy Tales.

Maggie Gallagher

Maggie Gallagher is a nationally syndicated columnist, a leading voice in the new marriage movement and co-author of The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially.