Court Rules Against Parents; Justice Thomas’ Dissent Protects Children
JUNE 28, 2011 BY STEVEN Birn
Yesterday the Supreme Court made an important decision concerning the selling or renting of video games to minor children. The Court ruled 7-2 in Brown v. Entertainment Merchants Association against a California law that restricted the sale and rental of video games to minor children. California had set up a system to prevent violent video games from being sold or rented to children wherein games were given ratings and children could only purchase games with ratings approved for their age. Retailers of video games sued arguing that video games are free speech. The Court determined that video games are in fact free speech and the state did not meet any of the provisions the Court has created for limiting speech.
Justice Thomas dissented in this matter. He argued the writers of the Constitution and Bill of Rights did not believe that speech extended to minor children. His position is correct. Justice Thomas stated on page 19 of the Court’s opinion:
The practices 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. I would hold that the law at issue is not facially unconstitutional under the First Amendment, and reverse and remand for further proceedings.
California, for a change, stood for the right of parents to decide what is appropriate for their own children. The 10th amendment affords states the right to protect children, and others, when there is no provision of the Constitution prohibiting as such. In this case, California wanted parents to be able to decide whether or not children were able to purchase and rent various violent video games. Children are to be protected by their parents and it ought to be up to parents whether or not their kids are able to purchase violent video games. Nothing in California’s law prevented parents from purchasing violent games for their children. Furthermore, California’s law did not prevent adults from purchasing violent games.
Justice Thomas looked to the view of children when the Bill of Rights was passed to determine whether or not free speech applied to children or not. He determined, correctly, that it does not. Parents were charged with protecting their children and parents were given the ultimate authority over the speech their children were allowed to hear. California sought to do the same thing in our day: Give parents the right to decide what speech their children have access to.
The effects of the Court’s decision in Brown are far reaching. Are there any laws on the books that protect children which will pass Constitutional muster? Michelle Obama’s dream of regulating away the advertizing of supposedly unhealthy food for children must be dead. After all, advertizing is free speech and no law can be passed protecting children from said speech. Could other laws be threatened such as anti-child pornography laws? Could it now be legal to send nude pictures to children so long as the pictures are not ‘obscene’ by court standards?
The Court’s decision in Brown leaves parents with few options in protecting their kids from violent games and perhaps much worse forms of ‘speech.’ The California law left parents more or less in control of the games their kids purchased. Retailers couldn’t legally sell certain games to minors and it was up to parents to decide whether they were ok with kids buying those games. In other words, it was up to parents to decide if their kids were mature enough to handle playing violent games. Now parents aren’t given a choice, they have no ability to protect their children.
Generally speaking this blog opposes restrictions on free political speech. However, speech to minors is not part of the Constitution. Neither is non-political speech for that matter. Parents need to be in control of the content their children hear. California attempted to give parents the ability to easily control the sort of games their kids purchased by preventing the sale of violent games to children. The Court took yet another protection away from children. The end result could be much worse than playing a violent game. Look for more litigation concerning speech regulations and children in the very near future.
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