An intriguing, and timely, analysis by Robert Barnes of the Supreme Court's decision last week to strike down California's law against allowing violent video games to be sold or rented to minors, appeared in yesterday's Washington Post, in an article entitled, "Scalia and Thomas disagree about children and free speech."
What is interesting to SCOTUS followers is that both Justice Scalia and Justice Thomas are "originalists," believers that the interpretation of the Constitution should be based on what the writers* of the Constitution had in mind.
From Barnes' analysis:
Justice Clarence Thomas [in his dissent from the 7-1 opinion] called upon “father of liberalism” John Locke, 18th-century philosopher Jean-Jacques Rousseau, the Puritan tradition, and American icons Thomas Jefferson and Noah Webster to announce a constitutional finding that his colleagues considered startling:
The First Amendment does not convey a free-speech right when minors are involved....
What would the Founders do?” had been part of the case from the start. At oral arguments, Scalia was adamant that depictions of violence had never been found to lack First Amendment protection.
Justice Samuel A. Alito Jr. jibed: “What Justice Scalia wants to know is what James Madison thought about video games.”
“No,” Scalia snapped, “I want to know what James Madison thought about violence.”
Thomas, on the other hand, wanted to know what Madison and the others thought about children.
After consulting Locke and Rousseau, examining Jefferson’s demanding schedule for his daughter (“dictating her daily schedule of music, dancing, drawing and studying”) and noting Webster’s concern for what children read (“Vice always spreads by being published,” he said), Thomas had an answer.
“The history clearly shows a founding generation that believed parents to have complete authority over their minor children and expected parents to direct the development of those children,” he wrote....
Scalia dismissed Thomas’s argument but did not engage in an originalist debate. He said the view “ignores” court precedent about the rights of minors. And he said it could criminalize allowing minors to attend political events or even church without parental permission.
(*Gouverneur [his name, not a misspelling of his title] Morris (1752-1816), a New York lawyer, wrote the document from the resolutions reached by the 55 delegates sent from the states to Philadelphia in 1787. James Madison (1751-1836) had kept notes of the convention, managed the debates, and suggested the compromises, and designed the system of checks and balances among SCOTUS, the President, and the Congress.)