The attorneys general -- including conservative stalwarts Ken Cuccinelli of Virginia and Greg Abbott of Texas -- argued to the U.S. Supreme Court that California's law did not abridge constitutionally protected freedom of speech, but backed up the rights of parents by rationally restricting the actions of children in a manner entirely in keeping with American constitutional, legal and cultural traditions.
"California's law falls squarely within the limits on juvenile freedoms which this Court has upheld," they said. "In fundamental realms -- such as voting, marriage, contracts, privacy, travel, juries, sentencing, and speech -- states may (and sometimes must) treat minors in ways that would be inconceivable for adults. California's law is situated within this sensible and laudable tradition."
"At bottom, California's law permissibly seeks to reinforce the authority of parents," they said. "Limits on juvenile freedoms find their strongest justification when they simply help parents guide their own children as they see fit. California's law does this. It wants parents, and not the marketplace, to raise children."
Under California's law, any parent could go to a retailer, purchase an extraordinarily violent video game and give it to their 7-year-old or 17-year-old to go play in their room.
The parent could say: "Go murder a cop, kid -- but first make him beg for mercy."
But retailers could not sell that game directly to a kid who walked into the store alone and handed over his lawn-mowing money.
Justice Clarence Thomas, the court's true originalist, did not see a complex issue here. He reviewed the history and determined that when the First Amendment was proposed, merchants were not understood to possess "a freedom of speech" that allowed them to sell depictions of violence directly to children without their parents' knowledge or permission.
"The practice and beliefs of the founding generation establish that 'the freedom of speech,' as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians," wrote Thomas.
But Thomas was a dissenter. Justice Antonin Scalia -- a conservative -- wrote the majority opinion in Brown v. Entertainment Merchants Association.
Scalia scoffed at the idea that video games are as harmful to children as opponents suggested. California, he argued, would have needed to show at least an actual link between playing video games and engaging in violence to meet his constitutional test.
The state "relies on research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children," wrote Scalia. "These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning)."
Oh, yes, Justice Scalia, perhaps psychologists have not yet collected data that scientifically establishes a causal link between vile video games and children -- or the adults they shall become -- engaging in vile acts in public. But what of the parents who know in their deepest hearts that these games can kill their child's soul? Who know that these games can teach children disrespect for all God-given rights?
Did our Founding Fathers truly intend that a merchant's right to sell such things to children without parental consent should trump -- under the doctrine of freedom of speech -- the right of parents to raise children morally capable of achieving eternal salvation let alone the sort of citizenship needed to sustain a free republic?
Clarence Thomas was right.
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