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The Spectacle Blog
Conservatives on BOTH sides of the recent decision upholding free-speech rights for violent video game producers should take very seriously the stirring dissent from Justice Clarence Thomas. I explain why, here. Here’s an excerpt:
His central thesis is that neither the First Amendment nor any other provision of law supersedes the fundamental right of parents or legal guardians to protect their children, nor supersedes a government’s interest in protecting the parents’ ability to do so…. Apart from the details of the video-game case, which may or may not involve threats to that fundamental right, it should be inarguable that such a right does adhere to parents (or legal guardians), and that protection of that right is essential to this nation’s ordered liberty. This is key: Rights apply not directly to children, but to them only through their parents.
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More Blog Posts by Quin Hillyer
http://spectator.org/blog/2011/06/30/clarence-thomass-supra-legal-w
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DRed| 6.30.11 @ 10:55AM
I don't see that right in the constitution. Can you point it out to me? Maybe it's in one of those penumbra things?
Wayne | 6.30.11 @ 11:42AM
You won't see employee or employer or corporation in the constitution, but somehow we have granted them special status.
It seems clear that children do not have the same rights as adults and adults have certain obligations not to harm children. The pretense of first amendment rights is an obamanation of the constitution.
redfish| 6.30.11 @ 12:15PM
I don't see anywhere in the First Amendment where free speech is said to cover the sale of a product. That itself is an interpretation, based on understanding the intent of the First Amendment. The Court has wisely ruled that banning the sale of products that express speech would be the equivalent of limiting speech.
The question in this case is whether to protect free speech, its necessary to protect free speech directed to minors. Does limiting the sale of products to minors make our civil discourse less free? No, there would be just as many opinions and views expressed as before.
Saying that the right to sell games to minors is covered by the Constitution sounds more like a 'penumbra' thing to me.
As for the opposite assertion that Thomas seems to make parents have certain rights.. let me ask this, does the state have the right to take your child away from you if you're not abusive or negligent? Why not? Your right to keep your child isn't in the Constitution is it? How would you even justify such a right in the Constitution? Thomas' argument is that its something that has been expressed over centuries in common law, not Constitutional law.
Quin| 6.30.11 @ 2:00PM
Try reading Thomas's dissent, to which I linked. He explains it.
Anommynous| 6.30.11 @ 5:14PM
Should we prohibit children from seeing NC-17 movies or R-rated movies if they're not accompanied by an adult? Of course we should. The government can't prevent the art from being made, but the art is not appropriate for people so young in age. Why are M- and Adult-rated video games any different?
DRed| 6.30.11 @ 8:04PM
Any retailer can still choose to not sell M and Adult rated video games to children. The MPAA (which rates movies) is a private organization-there's no law stopping a movie theater from show R rated movies to kids.
mzk1| 6.30.11 @ 5:34PM
No, it's original intent. Penubras are concepts that contradict original intent.
Occam's Tool| 7.1.11 @ 2:24AM
It's fairly simple, DRed. Let me use an example for you: suppose that you are an incompetent (RCV, I'm going to use incompetence and "impaired medical decision making interchangeably here, for simplicity---I'm aware they are not the same.) consenter for medications. We would appoint a guardian for you in that case so that your civil liberties wiould be protected as best as possible; so thatthere would be someone who the prescriber would need to talk to who could make a reasoned decision.
Children at certain ages have assumed (correctly) incompetence. Hence the concept, for example, of stautory rape. The guardian in that case is, in normal circumstances, the parent(s). (We are going to ignore criminal parents or abusive parents at this point, DRed. I'm going to assume the parents are like you.)
In that situation, just as with a guardian in the situation above, the rights do not apply directly to the incompetent consenter, but to the guardian.
For example, and I am NOT implying anything with this; if someone had sex with an underage girl, not only would there be the possibility of criminal charges filed by the State, the parents would have grounds to file on behalf of the child for civil damages.
This would fall under due process.
I'm not an attorney, but this falls under the range of things that I would be called into court to testify on as an expert witness---impaired capacity.
I hope that's helpful, DRed. I welcome RCV's elaboration and corrections.
Bill Hussein O'Stalin| 6.30.11 @ 11:09AM
If the government can have that paternal view built in, then that would also appear to indicate that programs like Obamacare would be permissible under the same line of reasoning.
Oldefarte| 6.30.11 @ 11:48AM
As I have relayed many, many times from my Catholic/Jesuit indoctrination of years past, FOR EACH/EVERY '''''RIGHT''''', THERE IS AN EQUAL/CORRESPONDING ''''''REPSONSIBILITY''''''. If parents/children have a right of protection from say, video games etc, then those parents ALSO have a RESPONSIBILITY to educate/counsel their children concerning the evils involved with same video games!!!!!
Dan| 6.30.11 @ 1:45PM
Hear hear.
Ore Gone| 7.1.11 @ 12:51AM
It's funny how it all comes down to being responsible and having respect. Two things completely left out of this generation's teaching. When I was a kid I got hacks with a paddle for being a jerk. There was a consequence to your bad behavior and I didn't mind at all. I like a system that rewards you for being good and punishes you for being bad. It defines good and evil. Now there is no consequence and there is no correction and voila "a social disaster".
LC JB | 7.1.11 @ 1:44PM
Therein lies the rub, as old Wil would say. I would have been opposed to this law in the first place, as I think ANY attempt to legislate parental rights is wrong. As I said over at my site, parents must actually supervise what their kids are doing. Here's a concept- Go with them to buy a new video game. I agree with Quin here, Thomas' intellect is incredible. Any wonder why the libs hate him?
WillyP | 6.30.11 @ 12:58PM
As a parent I object to the govt telling me what I can and cannot allow my children to view.
Quin| 6.30.11 @ 2:02PM
That's not what the law does. The law tells retailers they cannot sell to minors unaccompanied by the parents or guardians, i.e. without the parents' permission. The parents are perfectly free to let their children use such games, and to buy the games for their children.
bobmontgomery| 6.30.11 @ 2:59PM
Alcohol. Abortion. Entering into a contract. Voting. Once upon a time it was "community standards of decency." Legitimate govt. interest?
mzk1| 6.30.11 @ 5:21PM
Where is community standards in the constitution? It should be original intent, and that would give wide lattitude to censorship. Anyone who wants a libetarian constitution is free to push for a convention.
LC JB | 7.1.11 @ 1:46PM
Thanks for the edification. I was remiss in not looking at it entirely.
George S| 6.30.11 @ 3:22PM
I am surprised at Thomas for letting the word 'violence' stand at face value (only citing it as an adjective within three paragraphs). Does the state have the power, based on public policy, to determine what is violent? Can other forms of entertainment be banned for sale that the state feels are unsuitable for minors with only the barest of majority support?
The last thing we want are laws with good intentions that are open ended, thus letting a future legislature stretch the First Amendment elsewhere... should children be allowed to purchase Jefferson or the Bible without parental consent? After all, we want a parent around before these dangerous ideas are sold to children.
mzk1| 6.30.11 @ 5:19PM
I would think that all amendements have a hidden codicil, for adults. It's called orginal intent. BTW, original intent included banning obscenity, any obscenity, not community standards. The constitution is a federal document, not a libertarian one.
But the core issue, perhaps, is that in the original constitution none of this was relevent, because the bill of rights was not meant to apply to thestates, where such legislation orginates. The fourteenth amendment needs to be rewritten to throw out incorporation. If you want a right, make sure to live in a state that protects it. The feds should have no say, here.
LC JB | 7.1.11 @ 1:49PM
that incorporation clause does INDEED need to be tossed out, along with the commerce clause, or at a minimum reworded clearly.
Tim Williams| 6.30.11 @ 5:34PM
In the immortal words of Wally Cleaver to his little brother: "You're a kid, and you got no rights, and go to sleep."
Clint| 6.30.11 @ 9:02PM
"The framers, like Tea Partyers, feared concentrated central power more than disorder. They were, after all, revolutionaries. To them, an all-powerful state was a greater threat to liberty than discord and turbulence. Jefferson, like many of the antifederalists, did think the Constitution created too much centralized power. Most of all, the framers created a weak Executive because they feared kings. They created checks and balances to neutralize any concentration of power."