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Scalia's Stupid Decision

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.

Fourteen-year-old Tommy, on his way to baseball practice at a neighborhood park, detours by a local computer-and-appliance store. He has cash in his pocket, earned from mowing lawns. He now invests most of it in a vile video game.


At the ball field, Tommy hands the game to his friend, Billy -- who instantly stashes it in his equipment bag.

"Thanks, Billy," says this hypothetical 14-year-old. "My mom would kill me if she knew I bought that game. We can play it tomorrow when I come over to your place."

When Tommy uses the word "kill" to describe what his mother would do to him, it is a figurative use of the word. The word "kill" is not figurative, however, when it comes to some contemporary video games.

Last summer, Attorney General Buddy Caldwell of Louisiana and the attorneys general of 10 other states submitted an amicus brief to the Supreme Court defending a law enacted by California. This law prohibited merchants from selling or renting to children video games in which, as the law put it, "the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being if those acts are depicted" in a way that a "reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors."

The attorneys general cited a game called "Postal" as an example of what California had in mind.

This game, they told the court, "invited players to: Burn people alive with gasoline or napalm; decapitate people with shovels and have dogs fetch their severed heads; beat police to death while they beg for mercy; kill bald, unshaven men wearing pink dresses (in an 'expansion pack' called "Fag Hunter"); slaughter nude female zombies; urinate on people to make them vomit; and shoot players with a shotgun that has been silenced by ramming it into a cat's anus."


The Entertainment Merchants Association had sued California, charging that its law violated the First Amendment right to free speech of retailers who sold such games to minors without the knowledge or consent of their parents. A federal district court ruled against California. So, too, did the U.S. Court of Appeals for the 9th Circuit.

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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