Supreme Court Holds that Video Games Are Free Speech, Misses the Point

Posted on by Pastabagel and tagged , , , , , . Bookmark the permalink.

The Supreme Court held that a California law restricting the sale of videogames to minors was an unconstitutional limitation on free speech. I think it’s the right decision.

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.  

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21 Responses to Supreme Court Holds that Video Games Are Free Speech, Misses the Point

  1. Napsterbater says:

    Hi Pasta. Normally I really like your articles but this one feels less like you trying to enlighten us on any particular piece of pop silliness and more like you getting up on a soapbox and ranting about what’s wrong with America. I say this only because I didn’t come away from your article knowing any more about the Supreme Court decision than I did before, not because I necessarily disagree with you or the idea that government needs to stay out of the parenting business.

    • Pastabagel says:

      I accidentally hit post on this before I finished the article. Sorry about that.

      • Guy Fox says:

        No need to be sorry. It’s very unlikely that this post will have any negative consequences in the real world, so your moral responsibility is pretty limited unless we’re being viciously pedantic about the principle of charity and whatnot. If the purpose was to get people to think about an event/phenomenon, mission accomplished. Despite their expectations, you don’t really owe anyone here anything.

  2. Minerva says:

    If Video Games are Free Speech (ie. a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents)…

    then why is everyone over there raising a fuss about schools teaching “sex-ed” and “evolution”.

    • ar9890 says:

      Because the people making the video games are not part of the government.

      Public schools by virtue of being public institutions are not supposed to favor one agenda over another. Obviously that is not what happens in the real world but ideally that’s how it should work.

      • Minerva says:

        That makes sense, thanks.

        I wonder if this would tempt the government to use private enterprise as a means to promote its own agenda. ;)

        • BluegrassJack says:

          The government is now a part owner of General Motors, Minerva.

          The chairman of GM recently said he now wants gasoline taxes to rise a lot, so GM can sell small “eco-friendly” cars that the public unfortunately doesn’t want.

          So, yes, government was tempted and yielded to the temptation.

  3. rhizomatic says:

    I think you’re being uncharitable to Thomas. He doesn’t presume “that nothing is to be gained from children questioning their parents choices”. Nor is he saying that “parents should completely control their children’s intellectual and cultural lives”. I understand that you believe this is the ideology animating the dissent, but he assiduously avoids making an explicit value judgment with respect to the degree of parental control he argues was common at the time the Bill of Rights was enacted. His dissent focuses not “on his desire for government to be able to intercede in the parent-child relationship provided it does so on behalf of the parents”, but rather on the question of whether the framers and their contemporaries would have understood the First Amendment to protect speech aimed at bypassing parents to reach minors. On the basis of case law from the period (and after) which upheld a very strong common law right of parents to control their children, he concludes that they would not. He doesn’t engage with the majority decision except in a very limited way because the majority considers a whole host of legal issues that his position on this question renders moot (e.g. are videogames speech). It’s more than fair to disagree with his method, to argue that speculating about the subjective mental states of legal thinkers who have been dead for two centuries isn’t a way to arrive at good law. It’s also fair to take issue with the policy consequences of carving out a free speech exception for speech aimed at bypassing parents. But it’s unfair to accuse him of craven, bad faith political posturing without even pausing to engage his arguments on their merits.

  4. Dan Dravot says:

    …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.

    Silly. Post hoc. Glib. You can’t make a remotely persuasive case for blaming parental influence for any that stuff. Besides, we had to save the Belgians from the Kaiser. Did you know they chained women to their machine guns? It’s true! It’s TRUE! The Kaiser was the Ariel Sharon of his generation, if not worse.

    Also, what you call “nationalism” is perfectly necessary and healthy, and by all sane standards (that is to say, mine) the federal government is by far the most corrupt it has ever been, and getting measurably worse every year. The bit about “fascism”, wtf? I don’t know quite what to do with that. FDR’s the closest we’ve gotten, and compared to Mussolini or Hitler he was a pussy cat.

    And finally, given that it’s axiomatic that Bush was the Worst President Ever in the whole More than a Hundred Years since the dead white slaveowners wrote the Constitution, how can you say things used to be worse than they are? Let’s try to be objective here.

    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.

    What status quo? I have a weird sense that what you mean by “challeng[ing] the status quo” is memorizing a set of prejudices you approve of — otherwise you’d’ve noticed that kids “dressing like sluts” is one aspect of the status quo which arguably could use some questioning. I mean, maybe, maybe not. Whatever. But there are perfectly rational people who think it could.

    Besides, the only thing anybody ever means by “teaching kids to challenge the status quo” is teaching them to regurgitate his own views. Dude, I’ve seen my Cambridge progressive friends interact with their children. If the NASCAR crowd can figure out how to brainwash their brats half so thoroughly, they’re a lot smarter than they look.

    Personally, I think anybody who exposes young kids to TV, video games, or the public school system is a bugeyed fucktard, and criminally insane. But anybody who wants to get the government involved in childrearing (including the public schools themselves) is a great deal worse, and should in fact be hanged.

    Also, wouldn’t it be easier for everybody if California were simply to secede? They could pass their insane laws and we could get on with our lives in peace. Everybody wins. Until they go bankrupt in about three months. But then we could just point at them and laugh.

    • cliche says:

      FDR was close to Fascist?
      What are you, an economist?

    • Guy Fox says:

      Nationalism is bad. The quick and dirty argument is similar to the sociological argument against religion: although nationalists are capable of all the wretched things that cosmopolitans are capable of doing, there are several wretched things that are only possible on nationalist reasons. It is probably unnecessary and most certainly unhealthy.

      • ThomasR says:

        Irrational nationalism to an extreme is bad. Nationalism, in and of itself, is no worse than any other ism, and better than most, because its principles are flexible based on the nation’s position/beliefs/laws.

        And Nationalism is necessary. But that’s a whole different discussion.

  5. philtrum says:

    the good ol’ days of: slavery, civil war, two world wars, racism, ethnic cleansing of native Americans, nationalism, fascism, corruption, labor exploitation.

    I think you’re conflating your distaste for originalism generally (which I share) and possibly for Thomas (which I feel, whether or not you do) with your disapproval of this specific dissent. (And racism, nationalism, corruption and labour exploitation, at the very least, are with us still; and the power of the white paterfamilias over his white wife and children was reduced greatly throughout the period of ethnic cleansing, fascism, and two world wars — the Married Women’s Property Acts, the Nineteenth Amendment etc. etc.)

    I agree with rhizomatic, too: I read the dissent, and it did seem that Thomas was addressing quite a narrow question. Of course, I would argue that if the U.S. Constitution was truly written to impose eighteenth-century norms on all Americans forever and ever, you should scrap it and get a new constitution, but that’s my view.

  6. ThomasR says:

    …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.

    I notice a couple of people already pointed out that these “examples” of the results of not allowing children to buy video games without parental interference are not your proudest moment, but I wanted to emphasize that not only do none of these have anything to do with parental control over children (much less free speech), only labor exploitation is even potentially remotely related to this subject.

    It’s ok to hate the past and to love it when those young coeds “dress slutty”, but try to keep the rhetoric under control.

  7. Pastabagel says:

    Let me paint the picture for you. Parents typically filter out what they don’t like, and pass through what they do like. Whatever challenges their own worldview will not make it through to the kids, what ever endorses or supports it will. So the result is that every bias, wrong assumption, prejudice and generalization the parent has not only gets perpetuated in their children, but also amplified.

    The result is that all those terrible things I listed, any one which would be undermined by the mere dissemination of contrary or challenging ideas. You can only make generalizations about people when you aren’t presented with a substantial amount of contradictory information and when you aren’t permitted to hear directly from the people you are generalizing about.

    Thomas is not wrong that this is what happened in the past, his judgment is wrong because he thinks this is what was good about the past. This parental control and filtering is what was bad about it. The freedom kids had to roam around in and explore their environment was a good part, and there’s no reason that exploration shouldn’t be extended to the intellectual space.

    But this deference to parental control succeeded only in making successive generations of people with exactly the same views +/- some small delta. It does not surprise me that a conservative would like this approach. But it is a little strange coming from a black justice, whose ability to sit on the court is due in large part to young people rejecting what their parents told them was right and proper. In fact, all of the social and cultural progress over the last 50 years has been a direct result of younger people accessing information and ideas outside of the reach of their parents or in direct contravention of it.

    Sorry I didn’t provide all the dots, put the on the page, and connect them for you.

    • philtrum says:

      I still don’t agree.

      Let me paint the picture for you. Parents typically filter out what they don’t like, and pass through what they do like. Whatever challenges their own worldview will not make it through to the kids, what ever endorses or supports it will.

      That is true if and only if they can be with their kids 24/7 or entrust their kids 24/7 to people who think exactly as they do. Very few parents have ever been able to do this.

      So the result is that every bias, wrong assumption, prejudice and generalization the parent has not only gets perpetuated in their children, but also amplified.

      Maybe; but maybe not. All children defy their parents sometimes; that’s why the Puritans and neo-Puritans like James Dobson push so hard for breaking their wills with physical violence, arguing nothing else will do. I don’t think you’d find, if you explored accounts from the seventeenth and eighteenth century, that children inevitably grew up to march in lockstep with their parents. There were always parents who didn’t impose this kind of control, either because they didn’t believe in it or because they were unable to.

      The result is that all those terrible things I listed, any one which would be undermined by the mere dissemination of contrary or challenging ideas.

      Undermined, sure, but I think you’re underestimating how controversial many of these evils were when they happened. It isn’t necessary for everyone to share an ideology for these things to happen, and being exposed to new ideas doesn’t necessarily change anyone’s mind.

      Thomas is not wrong that this is what happened in the past, his judgment is wrong because he thinks this is what was good about the past. This parental control and filtering is what was bad about it. The freedom kids had to roam around in and explore their environment was a good part

      This is self-contradictory. If kids are roaming around and exploring it’s not possible for their parents to control and filter everything they see.

      [Thomas's] ability to sit on the court is due in large part to young people rejecting what their parents told them was right and proper.

      Well, yes and no. A lot of the student radicals of the 1960s had liberal parents; they were more radical than their parents but not fundamentally opposed to them. Certainly I doubt the young black people in the civil rights movement had parents who thought Jim Crow was “right and proper” — being resigned to it isn’t the same.

  8. CubaLibre says:

    Literally every Thomas dissent is exactly like this. It’s why he’s a national embarrassment.

  9. thecobrasnose says:

    Indeed. It is scandalous that a justice of African American descent should not show proper deference to his white liberal liberators and behave as they wish him to forever and always, no matter how his reason, conscience, education, and experience would direct him.

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