Justice Thomas’ dissent in the violent video game case is luminous, profound, thoughtful, historically-informed, and in every sense the distillation of the sentiments of every right-thinking man. He shows both as a matter of experience and practice, as a matter of logic, and of historic American principle that children are to be educated in virtue by their parents with the cooperation of society before being shoved out into the rough-and-tumble of the marketplace of ideas. Raising children with a thousand voices howling in their ears is no part of what the First Amendment stands for.
The law that Justice Thomas would have rightly upheld was a California law that prohibits the sale or rental of violent video games to minors, though not prohibiting parents from buying or renting such games for their children. Here are some representative quotes from his argument:
It was widely accepted that children needed close monitoring and carefully planned development. See
B. Wishy, The Child and the Republic 24–25, 32 (1968) (hereinafter Wishy); Grossberg 8. Managing the youngmind was considered “infinitely important.” Doggett, inRudolph 151; see also A. MacLeod, A Moral Tale 72–73(1975) (hereinafter MacLeod). In an essay on the educa-tion of youth in America, Noah Webster described thehuman mind as “a rich field, which, without constant care, will ever be covered with a luxuriant growth of weeds.” Rudolph 54. He advocated sheltering children from “every low-bred, drunken, immoral character” and keeping their minds “untainted till their reasoning faculties have ac-quired strength and the good principles which may beplanted in their minds have taken deep root.” Id., at 63; see also Rush, in id., at 16 (“[T]he most useful citizens have been formed from those youth who have never known or felt their own wills till they were one and twenty years of age”); Burgh 7 (“[T]he souls of Youth are more immediately committed to the care of Parents and Instructor sthan even those of a People are to their Pastor”).
The Revolution only amplified these concerns. The Re-public would require virtuous citizens, which necessitated proper training from childhood.
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.
“The freedom of speech,” as originally understood, does not include a right to speak to minors without goingthrough the minors’ parents or guardians. Therefore, I cannot agree that the statute at issue is facially unconsti-tutional under the First Amendment.
The Court has not actually stripped parents of their right to attempt to control what their child watches. What it has done is strip them of any societal cooperation. Under the California law and under the Supreme Court’s decision both, a parent could control what a child watched or did in their homes. But under the old California law, the parent could expect some cooperation from society in assuring that their child did not have access to material they disapproved of elsewhere. No longer.
Admittedly, the California law was crudely designed and probably didn’t afford parents much protection. The harm of the Supreme Court’s decision is not so much the law that it strikes down but the principle it enacts, that child-rearing is some kind of hobby of only private concern, instead of being the central activity of the family that society and government both are designed to protect and aid.
If the states aren’t willing to the take the Supreme Court’s word for it that the way kids grow up doesn’t matter, they may still have a way to engineer around the Supreme Court’s decision. Pass a law that allows parents to register their preferences for their children in a registry of some kind. The law simply requires retailers to check with the state registry before selling or renting violent or sexually-themed material to minors (naturally, sale or rental would be forbidden if the parent has forbidden it). The likely result is that most stores, to save trouble, will still simply not sale violent or sexual material to minors. But even if they do, the law would still let concerned parents guide their own child.