A few things worth noting. First, Justice Scalia, who liberals resoundingly hate, wrote the majority opinion, joined only by the liberal justices. This means that now conservatives hate Scalia too. So in the parlance of video games: Antonin, achievement unlocked.
Secondly, Justice Thomas’s dissent is both fascinating and grotesque. His dissent purports to be a history of the law enforcing parental restrictions on the content children consumed, going back to the founding of the country. But it includes this quote:
“that “the freedom of speech” includes a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents.”
What Thomas is saying here is not that Father Knows Best, but rather that parents should completely control their children’s intellectual and cultural lives, that this is how it was since the framing of the Constitution, and that the state (and the State) should recognize and enforce this.
This is precisely the type of conservative, reactionary thinking that deserves a full eviscerating live on television. First, if what Justice Thomas is saying was ever remotely true, it is precisely in the context of that parental control and filtering that we had the good ol’ days of: slavery, civil war, two world wars, racism, ethnic cleansing of native Americans, nationalism, fascism, corruption, labor exploitation.
More importantly however, is the assumption that nothing is to be gained from children questioning their parents choices. Parents, to put it succinctly, are idiots. They worry more about things like whether their daughters are “dressing like sluts” then about whether their kid is intellectually prepared to challenge the status quo.
They are not capable of filtering content for their children, because they are not capable of filtering for themselves. Left to their own devices, parents watch Real Housewives of New Jersey and Pawn Stars. Adults watching porn I get. But the shit that is on cable after 9pm is totally inexcusable.
I don’t want my kids spending 20 hours a week playing Portal or Warcraft because I would rather they spent that time reading books, building robots, shooting goofy movies to share with their stupid friends on Youtube, and dating girls. But there isn’t anything inherently wrong with the content that is so beyond the pale that parents should be outraged. What should outrage parents are the choices they have made in their own lives that inadvertently resulted in them becoming their parents.
But this is my judgment, and it may differ from theirs. Perhaps I am comfortable with them reading books and shooting movies because those are media that I am much more familiar with and which I believe to be more valid in the eyes of society. But maybe by the time my kids are teenagers, video games will have that status. But that determination will likely be one that they are in a better position to make than me. My prospective value judgments of their leisure activities are saddled with prejudices and assumptions that in time may become wrong, so I need to have the intellectual maturity to practice some deference. Part of raising children is raising in them the ability to make judgments for themselves.
But I digress. Thomas sums up his position thusly:
“In light of this history, the Framers could not possibly have understood “the freedom of speech” to include an unqualified right to speak to minors. Specifically, I am sure that the founding generation would not have understood “the freedom of speech” to include a right to speak to children without going through their parents. As a consequence, I do not believe that laws limiting such speech—for example, by requiring parental consent to speak to a minor—“abridg[e] the freedom of speech” within the original meaning of the First Amendment.”
Note that Thomas’s dissent focuses on his desire for government to be able to intercede in the parent-child relationship provided it does so on behalf of the parents. This belies the inherent tension in strict constructionism–it requires someone today to state what was intended then. Strict constructionism is a subjective determination made about the past that is disguised as objective.
But of course Thomas does not know what they really meant, and it is impossible to predict how they would react to the medium of video games accurately enough to make law. Note that Thomas dissent does not attack the legal reasoning of the majority or the precedent they rely upon. His dissent is pure ideology, pure politics.
And this is why this case is important. Not for the majority opinion, which was totally expected and predictable, but for the posture of the dissent.